KEY TAKEAWAYS

Finders keepers law is a defence to a steal or larceny offence. An accused person will be acquitted of stealing/larceny if he or she, after finding and keeping lost property, fails to take all reasonable steps that ought to have been taken to locate the owner. Failure to take those reasonable steps will amount to dishonesty being an essential element of the offence of larceny in New South Wales.

For more on this topic, speak to a stealing defence lawyer for customised advice. This article is not a substitute for legal advice.

Whilst everyone is familiar with the common playground expression of 'finders keepers', it is important to note that in New South Wales keeping found property could lead to criminal charges.

If you find an amount of cash or other valuable property, simply keeping it without taking steps to locate its owner could be considered 'larceny'.

Larceny is more commonly referred to as 'theft' or 'stealing'.

In order to be found guilty of larceny or stealing someone else's property, the prosecution must prove, beyond reasonable doubt, each of the following elements of the crime:

  1. You took and carried away property,
  2. The property belonged to another,
  3. You did not have the owner's consent to take the property,
  4. You intended to permanently deprive the owner of the property at the time of the taking, and
  5. Your actions were dishonest, in the sense that you knew the property being taken belonged to someone else,
  6. You do not have a claim of right made in good faith in the sense that you did not have a genuine belief of a legal but mistaken right to the property.

Here is more on the statute of limitation laws.

THEFT OR LARCENY BY FINDING | FINDERS KEEPERS LAW

Where an incident involves 'larceny by finding', the crucial element involved will be whether the person was acting dishonestly when taking away the property.

Whether someone has acted dishonestly is based upon applying the current standards of 'ordinary decent people'.

To prove that the accused was acting dishonestly, the prosecution will need to prove that the accused knew that the property belonged to someone else. Where the accused argues that he or she did not believe that the property belonged to someone else, the prosecution must negate this beyond reasonable doubt. The accused will be acquitted if he or she has taken all reasonable steps that ought to have been taken to locate the owner of the property. Therefore, a failure to do this by the accused will mean that the accused was dishonest according to current standards ordinary decent people thereby satisfying the element of dishonesty to the charge of larceny.

This will be assessed on a case-by-case basis, on the circumstances of the case.

Actions that may be considered reasonable steps include utilising available information such as an ID to try and locate the owner directly or handing the property into a police station or at the premise at which the property was found.

If the owner of the property has genuinely abandoned the property, or the owner could not conceivably be located, the person who took the property may present this in their favour.

A common example given is finding a $50 note whilst walking down an empty street – it is not likely that one would be considered dishonest for keeping the money.

However, if you clearly observe someone accidentally drop the cash and continue walking unbeknownst to this, it would likely be considered dishonest if you kept the money, as you could have easily alerted the person that they had dropped it.

There have been numerous cases across the country, in which people have been charged with larceny following finding money and not making efforts to return it.

In 2013, a 22-year-old design student was convicted after finding a bag with $11,700 in cash and failing to make enquiries into the identity of the owner.

The student was at St Peters' McDonalds when he found a leather bag containing the money, along with other items including a Victorian driver's licence, a Medicare card, an iPhone, and a swipe card for the Novotel Hotel.

He looked into the bag before quickly exiting the restaurant, with officers locating him after examining CCTV and details of transactions at the time.

The student had made no attempts to hand in the bag or the cash or locate the owner.

He was charged with larceny and received a 12-month good behaviour bond, with conviction.

At the time, the student pondered: "It's a human thing – pose a question: if someone is going to put that much money in front of you, what would you do?"

Furthermore, in 2010, a Melbourne couple purchased a suitcase for a few dollars at a Salvation Army, which had $100,000 hidden in the lining.

The person who donated the bag, was unaware that their husband had stuffed the suitcase with a significant amount of their savings.

Instead of returning the cash to the store, the couple kept it and started depositing the funds into different bank accounts.

When the donator realised their error and contacted the store, Salvation Army advised the couple that it would surely be returned soon.

However, after the sum was not handed in, police used details from an EFTPOS receipt to track the buyer. The money was eventually recovered, and the pair were charged with theft.

In NSW, larceny is criminalised under section 117 of the Crimes Act 1900 (NSW), which prescribes a maximum penalty of 5 years imprisonment, if dealt with in the District Court.

However, the offence will commonly be dealt with the Local Court, where, if the property is valued at $5,000 or greater, the penalty applicable is limited to 2 years imprisonment and/or a fine of $1,100.

Where it involves property worth less than $5,000, this is limited to 12 months imprisonment and/or a fine of $5,500.

However, if the property concerned is worth less than $2,000, the maximum fine applicable is $2,200 and/or 12 months imprisonment.

Here is more on shoplifting Australia penalties.

A defence to the charge includes where the property was taken away for a temporary purpose and the accused person did not intend to permanently deprive the owner of it.

However, this defence will not be viable where the court is satisfied beyond reasonable doubt that the person intended to appropriate the goods for their own use, or for their own benefit/that of another, even if they intended eventually to return the property, as per section 118.