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Embezzlement

Embezzlement is an offence under Section 157 of the Crimes Act 1900, which carries a maximum penalty of ten years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You were a clerk or servant of the employer
  2. You had delivered to, received or took into your possession property on account of your employer
  3. You did so fraudulently.

The element of fraud requires proof that:

4. You dishonestly and by a deception

5. Created a financial advantage over the property of another, or caused then a financial disadvantage, and

6. Your actions were intentional or reckless.

You must be found not guilty if the prosecution is unable to prove each of these matters.

Section 155 of the Act defines a clerk or servant as any person employed for any purpose regardless of the position’s duration.

An example of embezzlement is where you send an invoice to your employer’s customer containing your personal account details, and thereby receiving funds which should have gone to your employer.

A defence to the charge is having a ‘claim of right’ over the property, which means you genuinely believed you were legally entitled to it.

Duress and necessity are also defences to the charge.

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