Misappropriation is a crime that affects trust

In a judgment delivered by Magistrate Simone Grech in Police vs Terence (Terence-William) Zammit, the court made it clear that misappropriation is a crime that affects trust.

Zammit was charged with misappropriation of over €5,000 after police received a complaint from Adrian and Ingrid Camilleri. In a police statement the accused agreed that he had to refund between €2,000 and €3,000 which was a deposit on marble, however, he claimed he did not know that he owed any other sum. The complainant according to the accused stopped him from continuing with the works and in fact changed the locks.

Adrian Camilleri testified in court and held that this was a turnkey project. A deposit was given on the works. As the works continued, the accused asked for more money. He paid for the apertures and marble; both did not arrive. They spoke directly to the suppliers who informed him that the deposit was never paid. The deposit had to be paid again. This version was corroborated by Ingrid Camilleri. A supplier testified that the stairs was ordered by the accused, but it was never picked up and the Camilleris had to pay for this. The supplier of apertures confirmed that no order was made by the accused and the Camilleris paid for it.

Zammit explained that while the project was going on he was separating from his wife and had to stop. He agreed that he owed the Camilleris around €2,000.

The court analysed the legal issues and implications. It first analysed Article 293 of the Criminal Code which reads: “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 ….”

Article 294 allows that the police may prosecute ex officio if the thing referred to in Article 293 was given by reason of trade. The court quoted a precious judgment in the case, Police vs Joanne Sciberras decided on 15 December 2022, wherein the elements of the crime were listed: There must be a transfer of the thing by the owner, there must not be a transfer of ownership, the object must be moveable and that there must be a breach of the contract and used it for his or her own gain and destroyed it. The last element is intention to appropriate the object knowing it belongs to another.  On 5 March 1993, in the judgment Police vs Ali Abdulla Bakush, the court held that there was no need for the last element, because once the object was used for the accused’s profit then the crime was committed.

The court pointed out that the crime of misappropriation is a crime of abuse of trust. Therefore, the main element of this crime is not trickery but the inversion of the title of possession. The intentional element takes place when one takes advantage of the illegal use of the object which was entrusted to him or her.

On this particular case, the court held that there was no doubt that the money was given to the accused to carry out the works and to buy supplies. The accused explained that he told the Camilleris that he could not continue to work, but there was disagreement on the refund.

The court noted that it was a Criminal Court and not a Civil Court and therefore would only see whether the elements of the crime of misappropriation existed. Despite admitting he owes money to the Camilleris, this did not mean that Zammit was guilty of misappropriation.

The court was not convinced the money was converted into something else. Therefore, the accused was not guilty of a crime and suggested the issue was a civil matter instead.

The court then declared Zammit not guilty of the offence.