Rod and Todd are brothers. Rod started a firm (under his ownership) called "Rod'sHardware", which he initially ran and developed by himself into quite a substantialretail enterprise. With the success of that business, he felt able to hire family membersinto key positions in the business to share his success around. Todd was hired as thenight manager and closer of the shop every evening at 10 pm.

Evidence from other shop employees was that Todd expressed jealousy of Rod andexpressed the view that he should have a bigger share in the business (and its profits),not just be a "door closer". At the time these things were said, no-one took much notice.

Part of Todd's job at the end of the evening was to collect all the cash from the tills, lay itout on a counting table in a back office, count it all, record it appropriately, use some of itto re-establish floats of money in the tills for the next day's trade, and put the excess inthe office safe.

Todd developed some schemes for improving his financial position to the level to whichhe felt rightfully entitled. The schemes revolved around Todd's friendship with a shadycharacter known as "Spider", who was a local criminal and an old school mate of Todd.

Scheme 1

On one occasion, Todd ran into Spider socially. They reminisced, and Todd tried toimpress Spider by telling lies about the business (saying he was a part owner), sayinghow much money he was making out of the business, and offering to help fund Spider'sdodgy business for a share of the profit. Spider at first did not pay much attention to this.

The next evening when Todd was taking care of the cash from the tills as usual, he laidthe cash on the counting table in the ordinary course of his duties. He then took out hisphone, photographed the piles of cash (some tens of thousands of dollars) and sent thephoto to Spider, hoping to impress him.Todd then continued to deal with the money asusual, recording the money, re-establishing the floats and putting the extra in the safe.

Spider, upon receiving the photo, was impressed, and thereafter had more and morecontact with Todd.

When all this later came to light, the police charged Todd with stealing the money fromRod on the basis that Todd had converted it to his own use by photographing it andpretending to Spider that it was all his.

Question 1: are the elements of the offence of stealing established,assuming the facts outlined above are accepted?

Scheme 2

One of Spider's criminal businesses was re-birthing cars. Spider's underlings would stealcars. The cars would be taken to warehouses in the night-time which had been rentedovernight. Once at the warehouse, the cars were modified so that their identity waschanged, and they were repainted and altered so as to be sold later as a completelydifferent car. The warehouse would then be emptied, possession would be returned to the warehouse owner, and the police would not have time to learn what was happening.

Rod's Hardware had a section devoted to automotive hardware and tools, and part of thatwas a section which included things like professional car jacks, professional power toolsfor grinding, cutting and polishing, professional painting tools designed for cars and thelike. These products did not come packaged in individually wrapped containers likehome-handyman versions. Because they were designed for the trade, they did not needto have such attractive packaging. Indeed, it was expected that when sold to tradecustomers, these things could be a little dusty and roughly presented. They were expectednevertheless to actually be brand new if sold in the ordinary course.

Spider did not want to be found in possession of quantities of professional automotivetools. Todd and Spider agreed to a plan whereby when Spider opened up one of his "pop-up" warehouses, he would pay Todd to "rent" trade tools of the sort described above fromthe hardware shop. Todd

would simply let Spider have whatever he wanted from thehardware store and allow its return later. This would occur overnight, so Todd could bethere for the handing over of the tools to Spider late at night, and their return before thehardware shop opened the next day. Todd kept the money paid to him without accountingfor it to the business.

Todd of course had no authority to do this. Because the tools, even when new, were notpresented as though pristine, the overnight use they had rarely showed, althoughoccasionally there was a substantial scratch on an item or the like when it was returned.Todd passed this off as rough handling in the store by customers and discounted the sale price if necessary. Any consumables (like grinder discs) were paid for in the ordinary wayby Spider. There is no doubt Todd knew what Spider was doing with the material heborrowed.

When all this came to light, Todd was charged with stealing from Rodd for each item he"rented" to Spider in this fashion.

Question 2: are the elements of the offence of stealing established,assuming the facts outlined are accepted?