Criminal Law Theft and Fraud

No definition of the offence of theft; Carrara gives us a definition which has been taken up by our courts, “The malicious taking of an object belonging to others without the owner’s consent with the intent to make gain.” This is the definition which our court uses, our law simply creates one distinction for these offences. The law creates two types of theft: Simple Theft and Aggravated Theft. Simple Theft:

First element is “contrectazio” this is the taking away, this element has 3 schools of thought: 1. Carrara: Says amozio (movement), as soon as you have movement of the object, or as soon as the offender lays his hands on the object and simply moves it the offence of theft is complete. Carrara amended this to the moment of thought. 2. Pessina: Amozio not enough but you have to move it from one sphere of control to another sphere of control of the thief.

The movement has to be such that it removes control over the object. 3. Impallomeni : Not only must you move the object and take it to the sphere of control and take it to the desired destination. Pessina’s theory was used by the Italian code in 1889, this created problems in trial but Carrara’s has been best because it is the simplest. Pulizija vs Carmelo Felice, (Mamo Notes). In criminal law there is no distinction between owner, possessor or the detentor, the criminal law does not care. Second element dolosa, “malicious taking,” you cannot commit the act of theft involuntarily.

Police vs John Portelli 1981, Portelli claimed that he was acting under mistake of fact but the court disagreed and said he was acting maliciously and thus he was liable to theft. Third element di uno cosa, if we introduce the element of taking away the object has to be a moveable, it must be tangible and corporeal. The only exception is in water, gas and electricity but that is a specific exception laid down by the law. The object must have a value, what value do we give an object? The value is the market value of the object from the moment it was stolen. The fundamental rule is that the object must have a value confirmed by Carrara and Police vs Chetcuti 1963. Di cosa altrui, someone else’s object.

Fatto invite domino, done without owner’s consent and against the owner’s or possessor’s consent. You can’t steal a resillius and a res delicta, hence you cannot commit theft on something which is abandoned. What if you are co-owner of the item? If we’re co-owners you cannot steal the item, Carrara concurs. Absence of owner’s consent: Presumed consent between husband and wife and between employer and employee. This presumed consent can exclude theft, because in presumed consent because the owner is voluntarily giving the items to be used.

Previ case 1911, Police find out that police are going to commit a theft from a show, and the police ask the owner if they can wait for the thieves to wait for them to make the move, this happened and the police caught them. This question raised in court was that the owner gave consent for the things to be taken but the Court specified that the agreement needs to be between the owner and the person taking the item.

The owner agreeing with police so thieves could be caught is never tantamount to things being taken away. Theft by finding, you have 3 days to return the item to the police that is Section 340 (1). Furtu usus object stolen for particular use and then given back to the owner, which is a lesser crime. -------------------------------------------------

Animu lucrandi: stealing something of a joke, all elements are there except element of gain. Is this theft? Yes, you don’t need pecuniary gain, it can also be for some form of satisfaction. Pulizija vs Chetcuti 1943. You don’t require actual gain but the potentiality of gain is sufficient to find guilt Pulizija vs Fenech 1952. -------------------------------------------------

Aggravated 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". Violence: Manzini writes that violenece doesn’t have to be addressed to the victim but against any other person present during the crime. This is because the fundamental element of aggravation and applies to all aggravations is that the aggravation must have facilitated the commission of the crime. This was established in Pulizija vs Emmanuel Testa, Testa was a bus conductor who was charged with violent indecent assault for having groped an 18 year old’s breast on a bus. Was charged with violent indecent assault aggravated by a public office, the fact alone that he was a bus conductor, as a public officer. But this position as a public did not facilitate the aggravation and the court agreed that it did not facilitate the crime. So he couldn’t get an aggravation because he was a public officer.

Our law speaks of bodily harm or threats of bodily harm, there must be real or perceived bodily harm. What is essential is that this threat must necessarily be an influence on the victim’s mind. Violence can be used against a thing in so far as it instils fear of further harm to one’s self. The violence and the threat has to be such that it instils fear into the victim. Another form is violenza numerica , more than 2 thieves present themselves. By the term present themselves they don’t need to know they are all there, the victim has to know there are more than two they need not be in front of the victim. The rule is that you have to be sufficiently close to get into action. this includes being in a get away car or people strategically place on rooftops of street corners.

Violence can take place before, during or immediately after, after as to get away from the scene of the crime. Violence occurs concurrently with the offence. When perpatrators are armed, arms proper if you have a water pistol which looks like a real gun, the aggravation still exists because the violence is threatened with what seems to be a weapon thereby facilitating the crime. 262. (1) A theft is aggravated by "violence" -

(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; (b) where the thief presents himself armed, or where the thieves though unarmed present themselves in a number of more than two; (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.

(b) by means 263. Theft is aggravated by "means" - (a) when it is committed with internal or external breaking, with false keys, or by scaling;

Repubblika vs Cleo Azzopardi 1980, person broke a glass pane quarter of an inch thick which was there to protect the item from dust. This did not include the aggravation of breaking. Scaling is when you scale a wall by ladder of freestyle. There has to be some form of physical excursion and scaling would give you this aggravation even if you are using it to get away. Means includes a false key, this could include an original key which is misused. So if you misuse a key given to you it is a false key. (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. What is essential is the disguise hides your true identity, if you have a recognised limp this doesn’t work because the fact that you guised yourself would still exclude this aggravation. The disguise must be able to disguise your identity successfully. (c) by amount

267. Theft is aggravated by "amount", when the value of the thing stolen exceeds two hundred and thirty-two euro and ninety-four cents (232.94). The offence of theft can be aggravated by the amount, use to be Lm100 so the aggravation exists when you reach that value. If the value gets higher the aggravation will be larger. Pulizija vs Goldstein 1956. (d) by person

Your position must have aggravated the crime, the list is exhaustive. Breach of trust by servant because he has abused the trust given to him by the master.

268. Theft is aggravated by "person" - (a) when it is committed in any place by a servant to the prejudice of his master, or to the prejudice of a third party, if his capacity as servant, whether real or fictitious, shall have afforded him facilities in the commission of the theft; the term "servant" shall include every person employed at a salary or other remuneration in the service of another, whether such person lives with his master or not; (b) when it is committed by a guest or by any person of his family, in the house where he is receiving hospitality, or, under similar circumstances, by the host or by any person of his family, to the prejudice of the guest or his family; (c) when it is committed by any hotel-keeper, innkeeper, CRIMINAL CODE [CAP. 9. 107 driver of a vehicle, boatman, or by any of their agents, servants or employees, in the hotel, inn, vehicle or boat wherein such hotel-keeper, innkeeper, driver or boatman carries on or causes to be carried on any such trade or calling, or performs or causes to be performed any such service; and also when it is committed in any of the above-mentioned places, by any individual who has taken lodgings or a place, or has entrusted his property therein; (d) when it is committed by any apprentice, fellow workman, journey-man, professor, artist, soldier, seaman, or any other employee, in the house, shop, workshop, quarters, ship, or any other place, to which the offender has access by reason of his trade, profession, or employment.

(e) by place

Must be some form of premises which you must prove you live there

269. Theft is aggravated by "place", when it is committed - (a) in any public place destined for divine worship;

Any place that is authorise by the law for divine worship, it is the minister of rural affairs who decides this.

(b) in the hall where the court sits and during the sitting of the court; (c) on any public road in the country-side 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; You must have a place used by the public to store things, there are arguments which exclude a bank. (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.

(e) by time

270. Theft is aggravated by "time", when it is committed in the night, that is to say, between sunset and sunrise.

After dusk before dawn, after sunset before sunrise, what if you commit offence in night time and leave in day time but what matters is when the offence is committed.

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); Cap. 477. (i) when it is committed on any public record as defined in article 2 of the National Archives Act.

FRAUD

No definition of fraud, whenever there is a form of compulsion or whenever some form of deceit which exceeds the limits of civil law.

Misappropriation:

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.

Elements:

1. Whosoever misapplies 2. converting to his own benefit or to the benefit of any other person 3. anything which has been entrusted

There is the misuse of the object as a conversion benefitting to someone else. Anything which has been entrusted to him (entrusted differs from theft). For example I give my car to someone to garage it and he uses it as a taxi, you made a benefit from this. Something which is entrusted to you which you then misuse, for the benefit of yourself or for others.

In fraud the essential element is the entrustment of the thing given to you, the consegna, this differs from theft.

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.

Can be an immovable or moveable because it can be entrusted or delivered it has to be a tangible because of the case Pulizija vs Soler. This guy who was chairman of the Malta gas board ad had control over all items one day he ordered employees to deliver a number of cylinders to his house. Here there was a misappropriation, the defence said that the items had to be entrusted to him he wasn’t responsible for the gas cylinders. Court of appeal convicted him because the court said it is true it’s not interested in possession whether there were entrusted or delivered to him as a person on the board. We have to determine whether the offender had physical control over the items.

Here they were not entrusted to him with the keys, but here he was indirectly he had control because he was responsible for all the items he was in control of signoria di facto. It was an entrustment of the control because he was a general manager, upon his appointment he was responsible for the gas cylinders. In misappropriation there has to be an entrustment or delivery of the tangible object, the service does not apply because it is intangible and it cannot be misappropriated. So misappropriation applies for the cylinders not for the service. Misuse of personnel does not apply under misappropriation because misappropriation is of a tangible object.

127. Any public officer or servant who for his own private gain or for the benefit of another person or entity, misapplies or purloins any money, whether belonging to the Government or to private parties, credit securities or documents, bonds, instruments, or movable property, entrusted to him by virtue of his office or employment, shall, on conviction, be liable to imprisonment for a term from two to six years, and to perpetual general interdiction.

This can only be done by a public officer. If a public officer is receiving money on behalf of the government and uses it for himself it is not misappropriation because you’re a public officer. The word purloin shows an element of taking, something is given to you and you take it from the cash. Here your help yourself to something which was given to you.

False Pretences:

Here the item is given to you by the owner but this time it is because you tricked the owner. The owner voluntarily parts with the object as a result of deceit.

308. 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 seven months to two years.

Here you have to make gain to the detriment of the victim. What you do can be anything due to the wide name of the unlawful practice. The gain must be unjust and it must be illegal. this offence includes intangibles. So if Fleur Soler in the previous case could be found liable for abusing the service of employees.

The French added the element of una messa in scena where the fictitious name is not sufficient, here you must have a convincing back story. The French have adopted a wide interpretation requiring always a messa in scena. Carrara says there are two types of deceit which you can distinguish, there are material and personal ones. When speaking of material you don’t need a messa in scena, when it is personal like claiming that you are the president of Malta you need more than that. Italian text writers follow this, however our law is clear and if you are dumb and the victim is dumber and due to this combination you manage to make a gain it is still an offence.

Other Fraudulent Gain:

309. Whosoever shall make, to the prejudice of any other person, any other fraudulent gain not specified in the preceding articles of this sub-title, shall, on conviction, be liable to imprisonment for a term from one to six months or to a fine (multa).

Those crimes not covered by the title fall under Section 309.

Pulizija vs Scheiner 1956 This guy is an employee and his employer doesn’t pay him, he goes to employer’s wife and tells her he’s there to pick up the money for the groceries and he takes the money. This gives rise to both offences 293 or 294, you can argue here we can deny both because what he took was not an unjust gain because what he took was his pay which was a just gain. Here he was charged with 309 since it couldn’t be capped under one and he was acquitted.

Essential distinctions between theft, misappropriation and of taking money by false pretences or other false gain:

Theft presupposes a taking and it presupposes therefore that the agent is not in possession of thing. Misappropriation presupposes that the agent is in possession of the thing and the offender does not take the thing with the owner’s consent in theft, while the owner with his own consent free delivers the thing to the offender in misappropriation. In false pretences there is no taking and the item is delivered with the owner’s consent this time however the delivery is not freely done but is a result of deception.

Animo lucrandi not actual gain is required for the consummation of theft, in misappropriation conversion of the object is required, in false pretence actual gain is required. Theft is required in respect to movables as it presupposes a taking. Misappropriation and false pretences is also possible in respect of immovables and movables. Misappropriation requires a tangible and false pretences can be done in respect of a service or other intangibles. Notionally a time limit in the consummation of offences can be identified. Theft is complete as soon as the object is moved, misappropriation there must be conversion following entrustment or delivery and in false pretence actual gain must follow the delivery of the object. In theft no actual gain is required.