Posted Monday, August 15, 2016
Court lists elements to find accused guilty of fraud
The Magistrates Court in Gozo found Victor Camilleri guilty of fraud, misappropriation and falsification after it analysed in details the elements of each of the charges brought against him. Magistrate Dr Joseph Mifsud delivered his judgement on 21 July 2016 in Pulizija v Victor Camilleri.
 
Camilleri was accused of fraud, misappropriation and falsification, amongst others. The case started after a report was received from Margaret Vella. She told the court that Camilleri was engaged to take care of her family’s financial investments since 2001 and alleged that the accused has misappropriated £7,400 in investments.  They had investments in the National Savings Bank of Glasgow since 1980, which amounted to £7,400. The accused had given advice for this money to be transferred to Abbey National Bank. A cheque was received from National Savings Bank of Glasgow and given to the accused to open this new account at Abbey. They then received a letter from a certain Steven Greenwood confirming the deposit and signed a prepared letter that they will receive a pass book. This pass book never arrived and a reminder was sent. Abbey National Bank replied that there was no account in their name. 
 
Magistrate Dr Mifsud held that the law imposes on the prosecution to prove its case beyond reasonable doubt.
 
The Court then analysed the element that compose the crime of fraud. For fraud to be an element, there has to be a connection between the fraudster and the victim. There is need of an element of deceit and the intentional element by the person committing the fraud. The Court quoted from Il-Pulizija -v- Charles Zarb delivered on 22 February 1993 by the Court of Criminal Appeal, where the history of the Maltese legislation on fraud was explained and held that the Maltese legislation is taken by Sir Adriano Dingli from the Code of the Two Sicilies, which is identical to the French Code.  
 
Magistrate Mifsud quoted Judge Guze Flores, who insisted that the perpetrator must have the criminal intent to defraud and to procure a gain by means of deceit and this gain must be done at the expense of another person. If the person earns a legitimate profit, this excludes fraud. 
 
With regard to the charge of misappropriation, the court held that this is dealt with in Articles 293 and 294 of the Criminal Code. Art 293 requires that there be a complaint, however, in Article 294 dictates that if the assets were given due to one’s profession, trade or administration the police can prosecute independently from a complaint. The elements of misappropriation are that there must be a voluntary transfer of assets to the perpetrator. There must also be that asset to be used for the perpetrator’s advantage or else sold or destroyed. In Il-Pulizija -v- Enrico Petroni et decided on 9 June 1998, the court held that the perpetrator must receive the money or goods with the obligation to return them, but instead uses that money or goods on his/her own advantage. The Court explained that this is a  crime of an abuse of trust. 
 
On the charge of falsification, the Court explained that there are different forms of false documents. In this case, there was the creation of a false letter on 10 October 2002. In a civil case, the accused was already ordered to refund the Vella’s Lm4701 and in these proceedings it was declared that he in fact paid part this money. 
 
In sentencing, Magistrate Mifsud held that it was more appropriate for the accused to not only pay the victims back their money but also give something to society. Then he ordered the accused to give 100 hours of community service.
 
Dr Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
 
This article may also be accessed on Malta Today
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