JOSATEKI TADU, between 2nd day of January, 1998 and 1st day of May, 1998 at Suva in the Central Division, converted to his own use
and benefit certain property that is to say $6,442.50 which has been received by him from an account of Seamen’s Union of Fiji.
It was alleged by the prosecution at the trial, that the Respondent hceived the $6,442.50 in his capacity as the Secretary of the
Seaman’s Union, to spend on whon what was called “Flag of Convenience Campaigns.” The money was sent from the International Transport
Federation Workers Union, it appears for the purpose of recruiting new members of the Union. At the trial, evidence was led that
there were two factions in the management of the Union, but that evidence had little relevance because there was no real dispute
that the Respondent had received the money for the Union, and that he had withdrawn a total of over $6,000. The Respondent’s defence
was that he had spent the money on Union business and had not converted it to his own use. He was acquitted on the ground that the
prosecution had failed to prove the purpose of the fund, and that the Magistrate had a reasonable doubt as to whether the Respondent
had used the funds for an unauthorised purpose.
The State appeals against the acquittal on the following ds:
N-GB>
(a) langB> an>
(b) &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp; That that the Court erred in fact and law in failing to take into account all the evidence adduced by the prosecution witnessesefer
eir rve weight in its jud;
(c) &nnsp;&&nsp;;&nspp;&nssp;&nsp;  pan>shat the Court errt erred in fact in deciding that the Respondent had used the money
for a purpose that was never supported by any nce l the ;
(d) n> (e) & p; &nsp; &nsp; ;&bsp; &nbbp;&nnbp; Tpan>That the Court failed and erred in law in finding that the State had not proved its case beyond reasonable doubt.”
The State asks that the acquittal be set aside and substituted with a conviction.
Ground a
The prosecution led some evidence of the purpose of the fund, but evidence was contradictory. PW4 Kemueli Bogilevu said that the cheque
was for the Flag of C of Convenience Campaign, that the money was not for any particular purpose, and that it was “for general administration
of the Union.”
Patemosi Cava, a former treasurer of the union said that the money on one of the cheques, “was for the campai get more members for
the Uthe Union. This is the flag of convenience campaign. The money was used for the campaign.” The Respondent himself, in his sworn
evidence, said that he used the money for an ongoing Flag of Convenience Campaign, including paying rental in the house he was residing.
In his interview to the police he said that the money had been used for the campaigning but was unable to recall details on each
cheque.
There was evidence that the money was given for Union purposes and on the Respondent’s own evidence, for a “campaign” for the Union.
However no specific evidence was led as to what the Campaign included, and more importantly, what it excluded. There was no evidence
led that the money was not intended to pay for the administration costs of the Union, and that the Respondent knew that.
As such the learned Chief Magistrate did not err when he said that there was no specific detailed evidence aboutpurpose for which
the moneymoney could be spent by the Union.
Ground b
Ground b is a general ground alleging that the Magistrate’s Court failed toider the evidence. I deal with this ground under Ground
(e)d (e).
Ground c
This ground alleges that the court erred in deciding that the Responden spent the money for authorised purposes. This is a mis-statement
of what the Court actualltually said. The Chief Magistrate said that he had a reasonable doubt about the purpose for which the money
was spent. He made this finding on the basis of the Respondent’s evidence, and on the evidence of prosecution witnesses.
In order to prove a charge of Fraudulent Conversion under section 279(1) of the Penal Code, the prosecution must prove not only a conversion to an unauthorised purpose, but also a fraudulent intent at the time of the conversion.
The charge itself insofar as it fails to refer to the word “fraudulent”, is defective.
What evidence was there that the Respondent used the money for official purposes? The evidence of the signatories of the cheques (PW5
and PW6) that they believed that the cheques were used for Union purposes, the evidence of PW4 that the money could be used for administration
purposes, and the Respondent’s own evidence that
he had used the money for official purposes. ugh paying for rental appears to be a “personal benefit”, the evidence of the Investigatingating
Officer Sergeant Navera was that the Respondent was using the house of Tavaga (PW4) who was then the President of the Union. He said
that the Respondent did not say whether it was for union purposes or personal purposes. No other prosecution evidence was led as
to the purpose of the rental, and Tavaga himself who gave evidence was never asked why he himself took money from the Union as rental
of the house he was renting to the Respondent.
As a result of this economy in the evidence, it is nrprising that the learned Chief Magistrate had a reasonable doubt that the money
was spent pent on personal use rather than Union use.
Ground d
This ground alleges that the learned Chief Magistrate found that there was no legal body known as the “Seaman’s Union of Fiji.” In
what the Chief Magistrate rate said, at page 4 of his judgment was that there were two factions in the Union, and that “the Union,
given its internal problems, needed to authoritatively settle its constitutional “mess” first, before it could succeed in a criminal
court.”
It does not appear that this finding was a basis for the acquitThe learned Chief Magistrate erred in making this finding, because
whether or not an institnstitution is in a “mess” constitutionally, if the prosecution has proved beyond reasonable doubt that the
accused has converted funds belonging to that institution, to his own use and fraudulently, the court must convict. Indeed, it is
precisely when an institution is in a state
of constitutional or internal instability, that normal accountability procedures break down fraudulent conversion and theft becomes
more likely to occo occur. However although the Chief Magistrate was wrong to make this comment, his real finding was that he was
not satisfied of the conversion beyond reasonable doubt. As such, his comment was not an error upon which the decision turned.
Ground e
The acquittal was really on the basis that the prosecution failed to prove the purposes for whie fund could be used, and had failed
to prove that the Resp Respondent had used the money for his own use rather than Union use.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> As I have already said, the purposes for which the fund could be used were not ed with any clarity. This was probably a reflection
of the the fact that the representatives of the Union did not know what the money could be used for. No written or verbal directions
were given by the Union management to the Respondent explaining exactly what he was to do with the money. Nor were any questions
asked when he presented the cheques for signatures. Nor was there any audit, or request for receipts in respect of expenditure. The
paucity in the evidence as to the purpose of the funds (other than for general Union use or campaign funds) is a sad indictment on
the way the Union was conducting its financial affairs. It is not surprising that the prosecution was unable to prove exactly what
the money could be used for.
As to the use to which the Respondent said the funds had been deployed, the evidence was similarly uninformatihe only person who could
hald have answered that satisfactorily was the Respondent himself. However in his caution statement, he said he could not recall
exactly where the money was spent except for a few large amounts. Generally however, he said that the money was used for authorised
purposes. In his sworn evidence he said he used the money for campaigning and that the International Transport Federation knew that
the money was being used for rental.
It appears from the record that the Respondent was an unimpressive witness, who contradicted himself and was evasive. However, despite
this, on the whole of the evidence the learned Chief Magistrate had a reasonable doubt about whether the Respondent had in fact used
the money for personal purposes.
Taking the whole of the evidence into accoundo not think that he erred. Although the Respondent did not say where individual cheques
haes had been spent, his evidence that the money was spent on campaigning generally and with the authority of the other signatories
of the cheque, is really uncontradicted. No witness could say with any certainty that the funds had not been used for campaigning
for the Union. Further, the prosecution witnesses were unable to say with any clarity, exactly what the authorised purposes were.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In Wilisoni Tamaibeka & Aminiasi Katonivualiku -v- The State Criminal Appeal No. AAU0015 of 1 the appellant was charged rged on ten counts of fraudulent conversion. It was alleged that he received
large sums of money as loans from the Public Trustee for development work in Kinoya, and that he used the money for his own personal
use. The prosecution led evidence that no development work had been carried out, and the loan was never repaid. The defence was that
the money had been used for development purposes, in particular to pay creditors for the project. The Court of Appeal said (at p.11):
“The prosecution was unable to prove with respect to any one count the money to which that count related was fraudulently conv converted
by the first appellant to his own use. This is because of the prosecution’s failure to trace the proceeds of the advances.”
It is therefore not enough for the prosecution to prove that the Respondent used the money. They must prove either directly or by
irresistible inference, what he used it for. And on the facts of this case, I cannot say, as State Counsel submits, that the only
reasonable inference was that the Appellant used the money for his own purposes. Indeed, as counsel for the Respondent submitted,
another inference, also acceptable, is that the Appellant used it for Union activities and, being a poor administrator, failed to
keep proper records. This is so despite the fact that the Respondent was an unimpressive witness. In considering whether or not there
was a fraudulent conversion, the trial court must take the whole of the evidence into account, and the demeanour of the accused is
only one of the factors to be considered.
This ground is also unsuccessful.
Summary
For the reasons given in this judgment, the State’s appeal is dismissed. Counsel for the Respondent asked for costs on
ground that the appeal is frivolous and an abuse of the process. Section 3 the Criminal Procedure Code gives the High Court power to r to award costs to either party “as may seem just.”
In the circumstances of this case, I do not consider that this appeal was an abuse of the proces an unreasonable exercise of prosecutorial
discretion. I de I decline to order costs.
Nazhat Shameem
JUDGE
At Suva
19th November 2001
Haa0071j.01s
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