In prosecutions for stealing trust property, the prosecution must prove that the trustee's dealing with trust funds was inconsistent with the rights of the beneficiaries under the trust deed. Where the trustee has power under the trust deed to make loans or investments, the mere transfer of funds to a related entity does not constitute conversion unless the prosecution proves the entity was not held on trust. A loan agreement executed by a trustee within the scope of the trustee's powers under the trust deed cannot constitute a 'benefit' obtained by fraud under s 409(1)(c) of the Criminal Code (WA). For the purposes of s 79C(4) of the Evidence Act 1906 (WA), a fact that is relevant to whether an offence was committed is not necessarily a fact 'constituting or being a constituent of' the alleged offence.
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