So you buy a second-hand suitcase and discover $100 000 hidden in the lining. Does the ‘finders keepers’ rule apply? Under the Criminal Code (Qld) the answer to this question is no. Keeping a lost item or sum of money for your own use, without taking reasonable steps to reunite it with its true owner, is a form of stealing: stealing by finding.
It is important that all members of the public are aware that handing in a lost item to locate its owner is a legal obligation, and not just an act of good samaritanism.
What is stealing?
Section 391(1) of the Criminal Code (Qld) provides that:
A person who fraudulently takes anything capable of being stolen, or fraudulently converts to the person’s own use anything capable of being stolen, is said to steal that thing.
Therefore, to be guilty of stealing, the prosecution must prove that a person:
- Took or converted
- Anything capable of being stolen
Are lost items capable of being stolen?
Under section 390 of the Criminal Code (Qld) an item is capable of being stolen if:
- It is the personal property of any person; and
- It is moveable (tangible); or
- Capable of being moveable
Therefore, any lost and tangible item that has not been “abandoned” is capable of being stolen. An item has been abandoned if the previous owner has intentionally relinquished all ownership of that item. To avoid stealing another person’s property, however, it is best for a finder to hand in a lost item to police or management who will deem the item abandoned after a specific period of time. After this time, a finder may be able to claim the item as his or her own (see below).
What constitutes stealing a lost item?
Stealing does not necessarily involve the physical taking of an item. This is because stealing is also defined as fraudulently converting an item for one’s own use.
What is conversion? Conversion can be defined as exercising unauthorised control over another person’s property.
For instance, in the briefcase case (the facts from a real case), it was alleged that a Melbourne couple who withheld $100 000 discovered in the lining of a suitcase had ‘converted’ the money for their own purpose by depositing the funds into their individual bank accounts. This was conversion as, while the couple had not physically taken the money from the owner, they had exercised control over the owner’s money without the owner’s permission, and did so without taking prior steps to return the cash to whom it belonged.
Why it is important to hand in lost items
If a finder hands in a lost item to police or an authoritative body (such as the management of an establishment where the item was found), the finder’s action demonstrates an intention to not fraudulently keep the item for him or herself. Rather, the finder has fulfilled his or her legal obligation to take reasonable steps to reunite the lost item with the owner.
Under section 391 (2), to convert an item is fraudulent, and thus stealing, if the possessor demonstrates any of the following intents:
- An intent to permanently deprive the owner of the item;
- An intent to permanently deprive any person who has any special interest in the thing of such property;
- An intent to use the thing as a pledge or security;
- An intent to part with the thing on a condition as to its return which the person taking or converting it may be unable to perform;
- An intent to deal with the thing in a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;
- In the case of money – an intent to use it at the will of the person who take or converts it, although the person may intend to afterwards repay the amount to the owner.
Fraudulent intent, and thus stealing, under section (a) and (b) are demonstrated merely by the finder taking positive steps to use the lost item for his or her own purpose.
When using a lost item is not stealing
By handing an item in, a finder satisfies section 391(5) of the Criminal Code which stipulates that a person who converts a lost item for his or her own use it is not fraudulent, and thus not guilty of ‘stealing’, if the person:
- Does not know who the owner is; and
- Believes on reasonable grounds that the owner cannot be discovered [demonstrated by attempting to discover the owner’s identity].
Does the finder get to keep the lost item if the owner cannot be located?
Once a person who finds an item has made reasonable attempts to discover the true owner, he or she may be able to keep the item if the true owner cannot be identified.
Case law is clear that a person who finds and takes possession of an item has a better claim against the world to the item except for the true owner. This, however, is provided:
- The finder has acted honestly to reunite the item with the true owner [that is, handed it in to someone able to find the owner];
- The true owner cannot be found;
- The item was found on or in land which has not been sufficiently controlled by another party for the purpose of taking ownership of lost items.
See, for example, Parker v British Airways Board  1 QB 1004.