Embezzlement (Dishonesty crimes) Flashcards
Embezzlement
Fraudulent appropriation of entrusted property; Embezzlement involves a failure to account for goods or funds entrusted to the accused. AR - def is difficult but this seems to involve goods or funds which are in accused’s possession lawfully, but s/he has failed to account for them. MR - dishonest and deliberate intention to appropriate the property
Edgar v Mackay 1926
Typical case
Solicitor was recovering debts for whisky merchant, couldn’t be found, when arrested turned over the money and claimed this meant he was innocent
Held he had appropriated it because he had totally failed to account for it
Guild v Lees 1995
Curling club secretary in charge of club cheque book drew cheque to pay his electricity bill. Argued could not be embezzlement because amounted to transfer of incorporeal property.
Appeal refused: Transaction deemed typical of breach of trust giving rise to allegation of embezzlement.
Incorporeal property cannot be stolen but can be embezzled.
Allenby v HMA 1938
the accused was an agent for fishermen. He advanced money from a bank account to fishrmen who were not entitled to it, but he did this openly. prosecution failed, for lack of proven dishonesty. Held that the jury should have been directed that, unless they were satisfied that the panel had acted dishonestly, they were bound in law to acquit him of the charge, and accordingly that, in the absence of such a direction, the conviction and sentence fell to be set aside.
Moore v HMA 2010
affirmed that there was a need of dishonesty, Director of the company in which he and his wife were the sole 50/50 shareholders. marriage - difficulties seem like overt attempt to strip out the company’s assets so that there would be nothing for his wife on divorce. Presence of bad faith, or the absence of good faith, in making these withdrawals, did amount to the dishonesty necessary to constitute the mens rea
