R v Wain [1995] 2 Cr App R 660 FACTS: The defendant raised money in a telethon for a charity. He deposited the monies into a separate bank account, but when asked for the proceeds by the charity organisers he made excuses not to hand the money over and obtained permission to pay it into his own bank account. He then handed cheques drawn on his own account to the organisers but these were not met. At the same time, he was withdrawing money from the account for his own use. HELD: The Court of Appeal held:

'[B]y virtue of section 5(3), the appellant was plainly under an obligation to retain, if not the actual notes and coins, at least their proceeds, that is to say the money credited in the bank account which he opened for the trust with the actual property. When he took the money credited to that account and moved it over to his own bank account, it was still the proceeds of the notes and coins donated which he proceeded to use for his own purposes, thereby appropriating them.'

The TA 1968, s 5(3) does not prevent the defendant having legal ownership, but it provides that, for the purposes of the Act, the property also belongs to another. Under these circumstances, the prosecution would still have to prove that there was a dishonest appropriation, and that a defendant intended to permanently deprive. The TA 1968, s 5(3) only deals with one element of theft – 'belonging to another'.