Fraudulent Misappropriation

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The law

Section 178A of the Crimes Act states:

Whosoever having collected or received any money or valuable security upon terms requiring him or her to deliver or account for or pay to any person the whole or any part of:

(a) such money or valuable security or the proceeds thereof; or
(b) any balance of such money, valuable security, or proceeds thereof after any authorised deductions or payments have been made thereout,

fraudulently misappropriates to his or her own use or the use of any other person, or fraudulently omits to account for or pay the whole or any part of such money, valuable security, or proceeds, or the whole or any part of such balance in violation of the terms on which he or she collected or received such money or valuable security, shall be liable to imprisonment for seven years.

For the purposes of this section any such money, valuable security, or proceeds thereof, or any balance thereout shall be deemed to be the property of the person who authorised the collection or receipt of the money or valuable security or from whom the money or valuable security was received notwithstanding that the accused may have been authorised to make any deduction thereout on his or her own behalf, or any payment thereout to another person, or to mix such money, valuable security, or proceeds thereof, or such balance with his or her own moneys.

Maximum penalty

The maximum penalty is seven years imprisonment.

What the police must prove

In order for the police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt.

1. The accused collected or received the money or valuable security charged in the indictment.
2. It was upon terms that he or she should deliver, account for, or pay to some person named, the whole or some part of such money or valuable security, or the proceeds thereof after any authorised deductions or payments had been made.
3. The accused fraudulently misappropriated the money or failed to account for it in violation of the terms upon which he collected or received it. 

It will be necessary for the police in every offence to prove that the accused was the person who committed the offence.

Possible defences

Possible defences to this offence include but are not limited to

1. Duress
2. Necessity

What court is likely to hear the matter

Where the value of the property charged exceeds $5000, this matter is a Table 1 offence which means that either the DPP or an accused can elect to have the matter dealt with in the District Court. If no election is made it will be dealt with in the Local Court.

Where the value of the property charged does not exceed $5000, this matter is a Table 2 offence which means that the DPP can elect to have the matter dealt with in the District Court. If no election is made it will be dealt with in the Local Court.