Criminal Law Past Paper PDF

Criminal Law Dr Filletti THEFT AND FRAUD - ARTICLE 261 THEFT 261. The crime of theft may be aggravated - (a) by "violence"; (b) by "means"; (c) by "amount"; (d) by "person"; (e) by "place"; (f) by "time"; (g) by "the nature of the thing stolen". “Victor’s Monkey Al...

Criminal Law Dr Filletti THEFT AND FRAUD - ARTICLE 261 THEFT 261. The crime of theft may be aggravated - (a) by "violence"; (b) by "means"; (c) by "amount"; (d) by "person"; (e) by "place"; (f) by "time"; (g) by "the nature of the thing stolen". “Victor’s Monkey Always Plays Piano Till Noon.” Each word corresponds to the first letter: - Violence - Means - Amount - Person - Place - Time - Nature of the thing stolen Out of all the offences, theft is not defined. Our criminal code distinguishes between simple and aggravated theft but does not define theft. When does an item move from one sphere of possession to another? Size might be a factor in determining whether it is theft. In the absence of a definition, our courts have referred to jurists to define the offence of theft - Carrara Carrara: “la contratazione dolosa di cosa altrui fatto invito domino, con animo di farne lucro” This definition has many constituent parts: 1. La contratazione - the taking away of the object A crucial part of theft. This element distinguishes your acts being theft as opposed to fraud. What is this taking away? Does size matter? What is a sphere of control? Theft does not really dwell on the distinctions we find in Civil law (ownership, possession…). Jurists have given us three propositions where it occurs. Theory 1: Theory of Amozio Carrara told us that in this theory the offence of theft is completed the moment in which the offender moves the thing from the place the owner had placed it with the intent of stealing it. This is practical but there is a subjective element. Carrara redefined his theory: he then tells us that Amozio is complete the moment in which the offender touches the objects/lays his or her hands on the item to be stolen. Example: The moment in which the thieves lay their hands on a money bag, assuming all elements are there, the element of taking away is complete, regardless of whether they managed to escape or not. Theory 2: Theory of Pessina Pessina —> “Amozio de loco ad locum” It is not enough merely to move an object to constitute theist. According to him, the item must move within the sphere of control of the possessor and into the sphere of control of the offender. The sphere of control changes according to circumstances. In each case you must show that the sphere of control has been changed. Theory 3: Theory of Impallomeni According to him it occurs that “Amozio de loco ad locum que destineravat” The taking away is not only when you move an item from where the owner placed it with the intent of stealing it. It not only requires a change in the sphere of control but also requires that the offender would have placed the item in the final destination he intended the item to be put. Contractazio is then complete. Carrara talks about movement, Pessina about sphere of control and Impallomeni about destination. Our courts use NONE OF THE ABOVE THEORIES. Actually, our courts rely on the SECOND VERSION OF CARRARA’S THEORY. Can you steal an intangible item? NO. Because theft presupposes the physical taking away. Therefore, the item must be susceptible to touch and to taking away. If I steal a piece of paper containing property rights, I am stealing something the value of the paper. 2. Dolosa - Here we note that the contrattazzione must be doloso. Therefore, the act must be intended as opposed to accidental. The taking must be intentional, there must be volition. Therefore, the crime of theft requires a positive intent to commit a crime. One can’t be found guilt of theft if they took something by accident or through negligence since the action itself would not constitute malice but rather a mistake of fact. According to the author Antolisei, with reference to the general rules governing criminal law there is no malice if the agent mistakenly believed that the thing was his own or that the owner had agreed to the removal. 3. Di una cosa - One can steal something subject to touch and therefore must be tangible as argued by Manzini. One cannot steal an intangible away from a person physically. This means that one cannot steal something intangible and incorporeal - for example, one cannot steal a vested rights, IP rights or an identity (one can steal an ID card but not an identity - it is referred to as Identity Theft owing to common parlance. Identity theft is a crime under another offence). Equally, the object must be a moveable object. Immovable object cannot be subject to theft as they are incompatible with being physically taken away. According to Carrara however, an immovable thing could still be subject to theft if part of it was stolen since part of the thing was made movable but this is an exception to the rule. This becomes more challenging nowadays seeing as the definition of theft hasn’t changed with the advent of technology and the online financial systems which leaves some holes in the system. This is because intangible currencies etc. cannot be susceptible to theft as they are not subject to touch and by their nature they are incorporeal - goes against the definition of theft. This doesn’t mean however, that one cannot be committing a different offence in taking away someone else’s rights - it is however, not the offence of theft. To be subject to theft, something must be tangible, corporeal, moveable. Moreover, the object has to have some inherent value as items without value cannot be stolen and are not subject to theft. (Pulizija v. Chetcuti (1963): The court argued: “Hemm bzonn li l-haga misruqa jkollha xi valur anke minimu basta ikun hemm valur.”) This was also the line of reasoning in the case Police v. Natalina sive Nathalie Mifsud. (A specific legal amendment was included in 1986 to the criminal code to include for theft of electricity, water and gas. These intangible objects are specifically catered for in the law in a very particular manner. The law creates a presumption that the owner of the premise has committed theft unless proved otherwise when there’s damage to the meter, for example.) 4. Altrui - co-ownership This matter was debated at length by jurists. Academically, in so far as somebody has taken your share, there is theft. Co-ownership - part of it is mine. The subject-matter of theft must be res aliena, i.e. the thing must have ownership and for theft to arise, the person taking the object must have no right to take it. This requirement excludes a person being able to steal an item which they own or items which they co-own. The item must belong to someone else. In relation to this, we must also look at another characteristic of Carrara - “invito domino”. In the case of Police v. Olaf Cini the Court established that theft can be committed not only to the detriment of the thing that has been taken but also to the detriment of its holder. There are also items which are not owned, res nullius (something which is nobody’s) and res derelicta (something which is abandoned, which were in the property of someone but they were abandoned). If someone takes such items they cannot be charged with theft. In the case of Police v. Daryl Schembri (2014) the court quoted the Court of Criminal Appeal who in the 2004 judgment Police v. Jean Claude Cassar said the following: “kull min jiehu l-pussess ta’ oggett li jsib mitluq taht ic-cirkustanzi li jindikaw li dak l-oggett jappartjeni lil xi hadd u li ma kienx gie abbandunat minn sidu, i.e. li ma jkunx res nullius jew res derelicta, ikon hati ta’ “reat ta’ serq”.” In this regard, Professor Mamo also contends however, that the physical control of the thing which is necessary to establish ownership can also vary depending on the thing. 5. Fatto invito domino - without the owner’s consent Whenever you have the offence of theft it is essential to show that the thing has been taken without the owner’s consent, namely, that you took it without asking. There is a lack of owners consent. If theft is the result of intimidation, it lacks consent. The consent is afflicted by deceit. A wife driving her husband’s car without his consent. The husband files a report for theft for taking it without his consent. Presumed consent - in so far that certain relationships (spouses, employer-employee…) and element of presumed consent is created. Therefore, this would not be theft. This presumption can be easily rebutted, either if circumstances change or if the owner advises the other party that consent is no more. If you are in midst of a separation, in that circumstance, the presumed consent would not stand. Similarly if a husband suddenly does not consent to his wife using his car, then presumed consent does not exist anymore. ELSA The item must have been taken without the consent of the owner where the consent must be freely and spontaneously given. It is important to note that if the consent of the owner is obtained by fraud, according to Maltese jurisprudence, the result of fraud will exclude the offence of theft. One is unable to defend theft on the grounds that the person one has stolen from is not the owner but the possessor. One can steal from a possessor as you are not getting the consent of the person who according to criminal law is the ‘owner’ at that point. Ownership in terms of criminal law encompasses many things including possession. Ownership in a wider sense is defined as someone holding something under some title. Once we have established an owner, we need to establish consent. This raises an issue of presumed consent - there are certain circumstances where one can assume that there exists presumed consent. In order for this presumption to take effect, the relationship between the two persons must be such as to allow for this. Consent can also be obtained by fraud - here, one doesn’t have theft as it becomes fraud as the criteria for theft are no longer met. Section 340 (1) - Theft by finding: If you find something and you take it, that is something which has been mislaid by someone and it cannot be labelled as a res nullius or res derelicta. One therefore, has three days to take it to any police station, if not one will be charged with theft by finding. There cannot be theft if the person who is being stolen from has given their consent for the theft to occur. When speaking of consent, the consent must be something which the offender must be aware of. If consent is not freely communicated, thieves operate under the assumption that they are satisfying the criteria of theft including an item being taken without the consent of the owner. 6. Con animo di farne lucro - Theft must be done with the intent to make gain. It is a generic intent to make gain. The law doesn’t specify what ‘gain’ refers to. However, we don’t take ‘gain’ to refer solely to monetary profit, but we understand it to include many things such as the enjoyment and satisfaction of something which is not readily translatable in monetary terms. The gain need not be pecuniary (financial). The element of making a gain has many facets, it would include a pecuniary gain but not only. It would include any satisfaction derived from the theft itself. There are instances where people would steal something not necessarily to convert it into money. Example, a famous painting, if stolen is worthless from an economic point of view because you cannot sell it, otherwise you would get caught. He would steal it just to have the pleasure of having it in his or her own home. This would satisfy the animo lucrandi. The judgement Police v. John Galea et (2003) saw the court explaining this requisite of gain in the following manner: “The special malice of theft consists in the intent to procure a benefit or satisfaction whatever from the thing belonging to others. Thus ‘lucrum’ in this connection does not mean an actual gain or profit in terms of money but any advantage or satisfaction procured to one‟s self...”. This is in line with Carrara’s reasoning who argued that the specific intent necessary in order for theft to arise is the intention to procure a gain through the use of someone else’s thing for profit. Profit here is not to be understood as necessarily strictly monetary fulfilment but any advantage or satisfaction obtained for oneself. Gain does not need to materialise or be realised in order for it to be made. Gain can remain potential and not happening and the crime of theft can still occur. Actual gain following the crime is not necessary provided one has acting with the intent to make such gain. It is important to note that theft for use, fortum usus, which occurs when one steals something with the intent to use it and return in within 48hours, is considered to be a contravention and the punishment for such actions is severely decreased. Therefore, despite the fact that we lack a definition of theft within our legislation, it is evident that the Maltese court make use of the definition of Carrara exclusively since all judgments are based on the elements he outlines. What happens if you go on a bus stop and you find an iPhone 16. I take the phone which was left by someone else. We call this theft by finding which makes the contravention in terms of 340C - you must return the object to the nearest police station within 3 days. What if you have a court summon and you are late, so you steal a car to go to court, fully intended to return it to its rightful owner. Is this theft? This is theft for the purpose of using an item. Dealt with article 288 of the criminal code - this would render your crime a contravention - furtum usus. There is one notable exception to Carrara’s definition of theft - this relates to the item being a corporeal moveable example water and electricity. There is a specific exception in the law introduced in the 80s which makes it a crime to steal water, electricity and gas. The law also creates presumption - where it is shown that seals are broken, or the meter and pipes are tempered with, the law creates a juris tantum presumption that you are committing theft of water or electricity. You can show to a court that it wasn’t you - for example you were renting it out and it was the tenant tempering with it. The tempering of pipes, seals and metered creates a rebuttable presumption that the owner is committing theft. The law does not define the offence of theft but it does distinguish simple from aggravated theft. Aggravated theft comes with one or more aggravations. Simple theft is theft which isn’t aggravated. —> Article 261 Aggravated theft - This will have an automatic increase in punishment - the offender has taken care in doing something worse - he has displayed malice in committing the theft with one or more aggravations. The offender must be punished more severely. Also important to note that aggravations do not come singularly. They are cumulative - a number of combinations - by violence, by means, by person… etc. One aggravation does not necessarily exclude others. Example in hold up you can have aggravation by means, by person, by time. The following are the types of aggravations which will be discussed: Article 261 of the Criminal Code notes that the crime of theft may be aggravated by any of the following: a) Violence b) Means c) Amount d) Person e) Place f) Time g) Nature of the thing stolen Aggravation by violence - Homicide - Bodily harm - Confinement of the person (a) where it is accompanied with homicide, bodily harm, or confinement of the person, or with a written or verbal threat to kill, or to inflict a bodily harm, or to cause damage to property; —> This aggravation is talking about physical violence and more, which is accompanied by homicide or bodily harm. What if I do not kill or hurt the person, but you threaten to hurt or kill the person. Violence does not necessarily require actual or bodily harm or homicide, the threat of violence suffices, provided it accompanies the theft. Violence can be used both during and after the commission of the theft in so far as it is being used to get rid of the human cry of the theft. (b) where the thief presents himself armed, or where the thieves though unarmed present themselves in a number of more than two; —> It is clear that an offender must make a form of presence that he is carrying a weapon, which could be an arms proper (true weapon) or arms improper (an instrument which cannot be used as a weapon). It does not mean that you are actually armed, but you must give the impression. The impression must then be received by the victim who is then afraid. (c) where any person scouring the country-side and carrying arms proper, or forming part of an assembly in terms of article 63, shall, by a written or verbal request, made either directly or through another person, cause to be delivered to him the property of another, although the request be not accompanied with any threat. (2) In order that an act of violence may be deemed to aggravate the theft, it shall be sufficient that such act be committed previously to, at the time of, or immediately after the crime, with the object of facilitating the completion thereof, or of screening the offender from punishment or from arrest or from the hue and cry raised by the injured party or by others, or of preventing the recovery of the stolen property or by way of revenge because of impediment placed or attempted to be placed in the way of the theft, or because of the recovery of the stolen property or of the discovery of the thief.” —> In terms of sub-article 2, the violent exercise doesn’t have to be at the time of the act itself, it could also be previously or after the commission of the crime especially if you are trying to gain access to somewhere or to escape from arrest - to screen offenders from arrest, to get away. This violence must facilitate the commission of the crime or to facilitate escape from arrest. This sub- article seeks to include all possible violence related to the theft in question Violenza Numerica - Jurists speak about the fact that if there is sufficient proximity between the perpetrators that they can tag in and help if something go wrong. However, in today’s area, they are corresponding with other people through walkie-talkies does give the impression that there are more than two people - they are presenting themselves in a number more than two. It is important to go beyond the physical three and ascertain whether in the mind of the victim the perpetrators have presented themselves in a number more than three. The law speaks about presenting yourself in a number of two, three or more - you instill fear into the victim. With modern technology, the idea of proximity has changed. The violence can be used prior, during and after the commission of the theft if the purpose for the violence is to ensure the consummation of the crime or that the offenders flee from justice. Any action you take which is considered to be violent which facilitates the theft or getaway any of the three scenarios will still aggravate the theft. When you commit a theft and people flee, even though the offence of theft has been consummated and the violence came after, that violence will still aggravate the theft. Aggravation by Means Article 263: “Theft is aggravated by "means" - (a) when it is committed with internal or external breaking, with false keys, or by scaling; (b) when the thief makes use of any painting, mask, or other covering of the face, or any other disguise of garment or appearance, or when, in order to commit the theft, he takes the designation or puts on the dress of any civil or military officer, or alleges a fictitious order purporting to be issued by any public authority, even though such devices shall not have ultimately contributed to facilitate the theft, or to conceal the perpetrator thereof.” (A) I. Breaking: what does this refer to? An aperture for instance. You might need to break an internal door to get to something else - this is internal breaking. Breaking garden gnomes because you hate how they look is simple theft, not aggravated theft. When speaking of breaking an item we must also understand that we are breaking an item which will facilitate the commission of the crime. II. False key: a skeleton key (lock picker, illegal copy of key…). A false key includes an original genuine key which is used incorrectly. Struggle to classify an access code to be a false key. However, it satisfies all requirements of a false key. Instead of teeth, you have numbers/letters, therefore there isn’t a reason as to why it shouldn’t be classified as a false key. III. Scaling: when you go up a wall. You must be scaling something to gain access. A wall which you need to scale to gain access. The element of scaling does not mean you have to go up the whole wall - exerting yourself to gain access to a building. (B) Here we are speaking of persona travista - someone who is changing his guise. A number of situations - you hide your identity, you assume a fictitious designation (of a member of an armed force, police, warden etc) which gives the guise of some authority therefore facilitating commission of crime, or else dressing as a nun or priest. The law speaks of any guise or mask or costume. Example: You wear covid mask, you run in and commit a theft. Do you have the aggravation by means? Depends on the where, the whom, the why and the what. The law creates an exception to the rule. Because of the difficulty to distinguish whether the mask was able to facilitate the theft, the fact you tried to disguise yourself suffices to give you aggravation by means. Aggravation by Amount Article 267 Historically, we had the Maltese lira. We then converted everything. The moment in which the value exceeds 232 the theft is aggravated by amount. It is hard to find something which is worth stealing which is less than 232 euros. If we look at punishment section, notwithstanding there is an aggravation which is triggered with a value of 232.94, the punishment will continue increasing. How do you establish the value of something? The market price value? The emotional value? What is the value of an item stolen from me which I bought for £800 but then depreciated to £400? In principle the value of the item is the current market value at this point. When speaking about brand new item from shop, we need to look at the cost to replace it, and not the selling price as the latter involves a profit percentage. “The knowledge of the value of the thief is presumed until proven otherwise. But when there is evidence to the contrary, the magistrate cannot neglect the assessment.” - Manzini Therefore, this means that if, for example, a thief steals a vehicle with a bag loaded with jewellery, then the thief cannot be found guilty of an aggravation by amount introduced by that bag of jewellery – as long as the thief was not aware of the valuables stashed in the object he originally wanted to take beforehand. Manzini asserts that when determining the value of a stolen object, one must heed its market value as per the moment it was stolen. Purchase price, sentimental value, and other non-pecuniary riches are all irrelevant when determining the value of a stolen item. Aggravation by Time Article 270 We are looking at a situation were the aggravation is facilitating the commission of a crime because it is conditioned under the cover of darkness. Text writers have defined that moment of nighttime as the moment in which dusk falls and dawn rises. When you commit a crime at night and during the day - do you still have the aggravation? However, what happens if a thief commences a robbery in broad daylight, and concludes it under the moonlight? You intend to do it during the day, but it takes you so long to do it, it becomes the night. Jurists claim that if a greater portion of night-time was dedicated to the commission of the crime, then the aggravation by time ensues. This is because such a factor suggests that the alleged thief intended on attaining his goal under the guise of darkness. Italian jurists —> we can allocate jurists to each and every one of these views. Some say it is a question of proportion… The simplest one of them all: the moment in which any part of the crime has been committed, the facilitation of night time will give you the aggravation of time. Aggravation by Person Article 268: This aggravation refers to a number of relationships. Employer-employee scenario. There is a specific set of circumstances. This relationship between the two facilitates the commission of the crime in so far as the person stealing has easier access to the items being stolen. This relationship has contributed to the facilitation of a crime then consequently you have aggravation by person. Aggravation by Place Article 269: “Aggravation by Place - A theft is aggravated by place when committed – (a)... in any public place destined for divine worship; What if the land is sacred? It has to be destined for worship - what does this mean? If it is a place destined for divined worship it has to be officially recognised as such - given license by the state. A makeshift scenario would not land you this aggravation. Italian jurists state that in order for you to be given this aggravation not only must this be a place destined for divine worship, the item must also be a sacred object. If these two elements are present you have this aggravation. (b)... in the hall where the court sits and during the sitting of the court; (c)... on any public road in the countryside outside inhabited areas; (d)... in any store or arsenal of the Government or in any other place for the deposit of goods or pledges, destined for the convenience of the public;...; Arsenal: a collection of weapons and military equipment. Do you get an aggravation in a bank? NO, only the central bank. Here we apply the ejusdem generis principle whereby when you have a list of items, the list should be read in conjunction with what was said before - they all retain the same quality or category. This means that every single place mentioned in (d) all partake in the quality mentioned in the beginning “of the Government”. This main quality has to be passed to all the different scenarios that follow. The aggravation occurs because you are stealing from the state. (e)... on any ship or vessel lying at anchor; (f)... in any prison, or other place of custody or punishment; (g)... in any dwelling-house or appurtenance thereof.” A dwelling house is a house used as a residence rather than for business. An appurtenance is an accessory or other item associated with a particular activity or style of living. The nature of the aggravation subsists because the destination is a property. Its irrelevant the type of dwelling house it is. You could have a dwelling house which is uninhabited but still a dwelling house because it is not finished yet. If it still being built it is not a dwelling house. If you have a garage, pool room next to the house you would get the aggravation. A large complex separate and distinct from your residential unit is not an appurtenance. It must be joint to your house. Aggravation by nature of the thing stolen Article 271 271. Theft is aggravated by "the nature of the thing stolen"- (a) when it is committed upon things exposed to danger, whether by their being cast away or removed for safety, or by their being abandoned on account of urgent personal danger arising from fire, the falling of a building, or from any shipwreck, flood, invasion by an enemy, or any other grave calamity; (b) when it is committed on beehives; (c) when it is committed on any kind of cattle, large or small, in any pasture-ground, farmhouse or stable, provided the value be not less than two euro and thirty-three cents (€2.33); (d) when it is committed on any cordage, or other things essentially required for the navigation or for the safety of ships or vessels; (e) when it is committed on any net or other tackle cast in the sea, for the purpose of fishing; (f) when it is committed on any article of ornament or clothing which is at the time on the person of any child under nine years of age; (g) when it is committed on any vehicle in a public place or in a place accessible to the public, or on any part or accessory of, or anything inside, such vehicle; (h) when it is committed on nuclear material as defined in article 314B(4); (i) when it is committed on any public record as defined in article 2 of the National Archives Act. The essence of this aggravation lies in the fact that the item has been exposed to theft because of circumstances beyond the control of victim - natural calamity, a flood, fire or collapse of a building. FRAUD What is fraud? It is deceit. There is the element of financial gain. What is the distinction between lawful deceit and unlawful deceit? What is the difference between theft and fraud? In both, I do an action and obtain financial gain. When the victim, as a result of the deceit, voluntarily gives the item to the offender, it is fraud. Theft is the taking away without the consent of the owner. Imagine I call dry cleaning services and a man shows up at my door, pretending to be a man who works with dry cleaning. I give him my clothes - this cancels the element of theft. One of the most distinguishing features between theft and fraud is the element of taking away. In all the forms of fraud, the item is given to the offender. Had it been taken away it would be theft. It is true that the victim has parted with the object and given it to the offender. But he has either done so for a specific reason which you then alter, change or abuse and thereby relating fraud or in handing you the object, you did deliver the object but you did not do so consensually because your consent was vitiated by fraud, deceit. Jurists will tell us that deceit becomes criminal the moment in which the level of deceit exceeds what is civilly or socially acceptable. They do not define what this rule is. Unlike theft we have a number of offences of fraud which are very well defined, both in their actus reus and their mens rea. The common elements which flow through fraud are: 1. The item is delivered to offender by the victim in circumstances of deceit 2. You must make an unjust gain. This element is intrinsically enshrined in the notion of fraud. It is this element which powers the offence of fraud. It is when the deceit and the unjust gain merge that it becomes an offence. If the method of obtaining the money was incorrect, ultimately what he pocketed cannot be classified as unjust gain - there is no element to make unjust gain therefore not fraud. Three types of wide offences for fraud: 1. Misappropriation 2. Obtaining money by false pretences 3. Other fraudulent gain (umbrella provision) 293. “Whosoever misapplies, converting to his own benefit or to the benefit of any other person, anything which has been entrusted or delivered to him under a title which implies an obligation to return such thing or to make use thereof for a specific purpose, shall be liable, on conviction, to imprisonment for a term from three to eighteen months: Provided that no criminal proceedings shall be instituted for such offence, except on the complaint of the injured party.” 1. Whosoever misapplies. The word misapplies means misusing. How and what do you misapply? 2. Converting to his own benefit or to the benefit of any other person. There has to be a conversion in the act of misapplying/misusing. You are converting the item to my benefit and the benefit of someone’s else - element of gain. 3. Anything which has been entrusted or delivered to him under a title. This is where the offence is moving away from theft. In theft we have the element of taking away. In this case the item has been entrusted and delivered to the offender by the victim. 4. Under a title which implies an obligation to return such thing. What is this title? When the law refers to the word title we don’t mean the word to. It needs to be a legal title identifiable by civil law on what ever title. Civil law has created a very complex definition. Article 293 in its basic form is an offence which is only prosecutable upon the complaint of the injured party. We must add 294 and 310 - the former is an aggravation and the latter is an aggravation by value. 294. Nevertheless, where the offence referred to in the last preceding article is committed on things entrusted or delivered to the offender by reason of his profession, trade, business, management, office or service or in consequence of a necessary deposit, criminal proceedings shall be instituted ex officio and the punishment shall be of imprisonment for a term from seven months to two years. Where the item has been given to you because of your job, this becomes an aggravation. Example, I entrust the mechanic with my car. If he steals the item, it becomes an aggravation. The element of entrustment of delivery. For this offence you require affidamento o consenio. When is something entrusted or delivered to you? What is the difference? I can entrust you with a moveable. The crime is consummated the moment in which it is converted to the benefit of myself or of someone else. Actual gain is not required. 1975 - il-Pulizija vs T. Fleri Soler The main point of contention was whether there was entrustment or delivery of these gas chambers. He has been entrusted with the item. The appellant as General Manager of the Malta Gas Board was charged with having misappropriated a number of liquid gas cylinders which he had caused to be sent to his house without payment, by the drivers and other employees of the corporation. On appeal it was submitted that the accused could not be guilty of misappropriation of the cylinders as these were not in his possession. It was held that the accused had his office in Marsa, and they were physically in the hands of the foreman and the storekeeper at the Birzebbugia plant of the Board. The court held that as general manager of the Board, the appellant was sufficiently entrusted with the kustodja autonoma' of the cylinders (which he subsequently sent to his house) to satisfy the elements of articles 293 and 294. The court explained that possession for misappropriation does not correspond to the civil notions of possession or detention. The court said that although the concept of possession under review is akin to detention under civil law, the latter requires ‘konstigwita fizika’ which is not necessary for misappropriation. The court pointed out on the Authority of Manzini and Petrocelli that the material detention of a thing amounts to possession (for criminal purposes) only if it is capable of producing a situation implying ‘una signoria di fatto sulla cosa’. The Court drew parallels between criminal law and civil law. Although in civil law the elements of possession and retention require continuity, in criminal law this is not required. You do not need this physical relationship as you would in possession and retention. What would link the items to the person entrusted with them if not the physical relationship? The fact that the offender could exercise some power or authority over the item. The fact alone that this officer has the power to control the movement of these items, then this link suffices to satisfy the requirements of entrustment. EMBEZZLEMENT Found in section 127 of the criminal code: “ The law clearly identifies that the offender has to be a public officer or servant. There is a distinction between the two however this is less important with the Public Administration Act which gives us a better definition of what a public officer is. Must be done for one’s own private gain. The act is one of misapplication or purloins. Purloins is not easy to define - it has an element of misapplication - you hide something without actually having full taken it away. Purloining would be where you apportion or hide something. You move it aside. Italians speak of distra esse (misapplication) and sotra esse (more related to theft yet it is still not theft as you have not taken it). Embezzlement is not an offence classified under the offence of property. It is punished more severely because there is an element of breach of public administration and public trust. OBTAINING MONEY BY FALSE PRETENCES Found in section 308 of the criminal code: Whosoever, by means of any unlawful practice, or by the use of any fictitious name, or the assumption of any false designation, or by means of any other deceit, device or pretence calculated to lead to the belief in the existence of any fictitious enterprise or of any imaginary power, influence or credit, or to create the expectation or apprehension of any chimerical event, shall make any gain to the prejudice of another person, shall, on conviction, be liable to imprisonment for a term from one to seven years.” Stems from continental law - Code Napoleon. Also called the offence of escroceri. We have a verbose section which gives us detailed definition of the actus reus and mens rea required for this offence. The intent is the one to make a gain. What sort of gain must I make in misappropriation. “Shall make any gain” —> you must make a gain. It would seem that actual gain must follow for you to be convicted of the offence. If you are still awaiting for payment you have gain, here you have attempt. In this type of offence we have an offender who with the intent to defraud exercises a form of deceit mentioned in section 308. As a result, you make a gain. You thereby, have the consummated crime. For this offence you must have deceit and an unjust gain. You must deceive with the intent to deceive and make an unjust gain. If the element of unjust gain is missing you cannot have an offence of fraud. “Chimerical event” —> chemical - event which involves some chemistry - like a potion which will make you look younger. Do i have to do something in furtherance to the deceit? What if I go to a restaurant and say that I am Ariana Grande? There has to be something more. In Godfrey Formosa —> there has to be an element of deceit which would impress or make influence on ordinary man with ordinary common sense. These elements of deceit are designed to play on one’s mind and persuade you into falling into the trap of fraud. The elements of deceits are those listed in the law. The court would seem to suggest that for there to be deceit, it must impress the ordinary reasonable man with ordinary sense. What jurists like to discuss is whether the deceit alone, especially when you are speaking of a fictitious name or the assumption of a fictitious role suffices, or whether you must do something in furtherance of those words. They speak of the requirement of having a Mise-en-Scène —> required to boost your deceit. Debate as to whether you require something moe than words, some material circumstances to create the circumstances, or whether you can use words alone. Our judgements take one position but there are judgements which go either way. The Mise-en-Scène was a factual backdrop to make your words more credible. Impallomeni: mise-en-scene is always required Carrara takes a different view. He creates two different categories of circumstances A. Those in which the offender does something - an execution of fraud. Nothing further is necessary because your actions suffice for guilt. B. Instances where I obtain money of false pretences where I just use words. Lies can never on their own be the basis for guilt for offences of fraud. You must do something in furtherance of simple words. Where you have simple words you necessarily need some factual backdrop Our law does not refer to mise-en-scene. We stick to the narrow interpretation of the law, no particular mise-en-scene is required. Our courts have seem to have favoured this element. Namely that words alone might not always be enough. The courts do not always formally refer to this as a mise-en-scene. Rather, the wording of the judgement would seem t suggest that all that is required is some form of action of fact to bolster and strengthen in the mind this element of fraud. Pulizija vs John Zarb - the court is saying it is not enough to make wide declarations but there has to be some external factors which will touch up these words with a thin veil of credibility. This external act is giving credibility to your words. Pulizija vs Aron Mizzi - there must be some external act which reinforces the belief in the mind of the victim or which adds credibility to the words of the offender. There is some element of confusion. Maltese courts would favour this idea of having this mise-en- scene which would confirm and bolster and affirm in the mind of the victim the falsehoods. This introduces another offence of fraud, namely article 309. ARTICLE 309: OTHER CASES OF FRAUDULENT GAIN NOT MENTIONED IN PRECEDING ARTICLE This is an umbrella provision. Innominate fraud, it can cater for any fraud without having to go into what crypto is etc. this is any other fraudulent gain made to the detriment of the other person. This simple section means it is very versatile and flexible in so far as it would defeat the notion of time. Rather than creating a provision for each offence of fraud, an umbrella provision was created. Innominate fraud – a residual umbrella offence which speaks of any form of fraud not being one of the forms of fraud, which you can find in the previous section of this title. It is residual because it is any other kind of fraud not being an instance of fraud mentioned elsewhere in this code. It is an umbrella provision in so far as it covers any form of actus reus. It is done with the intent to receive, and you make a gain. This simple section, as we have examined, means that it is very versatile and flexible so far that it would defeat the notion of time. rather than create a provision of fraud for every possible instance of fraud, the legislator created one umbrella provision for all instances of fraud. What is the relationship between 293 and 309? You can only convict under 309 if the actions do to constitute any other crime under this title. If there is no unjust gain 293 etc. always fail. 309 can only be proven if you can exclude the applicability of the other offences within that title. The law requires you to say that an offence is neither 291 or 309. This argument was based on law. In theft the intent to make gain is what is required. In misappropriation there has to be conversion. Draw a different timeline in the consummation of offences. The theft is complete the moment in which you touch the object. In misappropriation you must convert the item, to your own benefit or to someone else’s benefit. False pretences - actual gain must follow. THE END