IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0021 OF 2004S

STATE

v.

JONA SAUKILAGI

Counsel: Mr Daniel Goundar for the State
Accused in Person

Hearing: 24th January 2005
Ruling: 25th January 2005

RULING

The Accused is unrepresented and because of the nature of the evidence against him, I asked counsel for the State to make submissions to me about sufficiency of evidence on each element of each offence on the information.

The law relevant to this ruling is section 293 of the Criminal Procedure Code. That section provides:

“When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused ….. committed the offence, shall, after hearing, if necessary any arguments which the barrister and solicitor for the prosecution or the defence may desire to submit, record a finding of not guilty.”

The test at this stage of the trial is whether there is evidence-relevant and admissible evidence-that the accused committed each offence on the information. The weight of such evidence and the credibility of any witnesses are of limited relevance (State v. Mosese Tuisawau) Crim. App. 0014 of 1990).

As it happens, the weight of the prosecution case is of limited relevance in this case because the Accused does not dispute the factual basis of it. He does not dispute that he opened a joint bank account in December 2003 that he deposited into it a cheque of $201.31 on the 4th of June 2004 and that a bank teller Diana Walai, in error entered the amount as $20,131.00. He does not dispute withdrawing all the money between the 4th of June and 8th of June and spending it on his own use. What he disputes is that he withdrew and spent this money with fraudulent intent, or with intent to deprive the Bank of the money. Further, in relation to the counts of Obtaining by False Pretences, his position is that he made no false pretence to Morris Hedstrom where he obtained the goods.

State counsel made full and comprehensive submissions on these elements of both offences.

The elements of simple larceny under section 259 of the Penal Code are:

1.	The accused;
2.	Without the consent of the owner;
3.	Fraudulently and without a claim of right;
4.	Takes and carries away;
5.	Anything capable of being stolen;
6.	With intent to deprive the owner of the goods;
7.	At the time of the taking.

Section 259 provides that the words “takes and carries away” includes obtaining possession under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained.

The question at this stage of the trial is whether there is any relevant and admissible evidence that the Accused, in withdrawing the sums of money from his Bank account did so fraudulently and without a claim of right.

The word “fraudulently” was held in R v. Williams [1953] 1 QB 660, to mean that the taking was intentional and without mistake and with knowledge that the property of another person is being taken.

A person has a claim of right where he honestly asserts what he believes to be a lawful claim even if it is unfounded in law and fact (R v. Farnborough [1895] 2 QB 484 and R v. Bernhard [1938] 2 QB 484). In Farnborough it was held that whether the Accused had such an honest claim of right, is a jury question, to be decided on all the evidence. Such a belief must exist at the time of the taking. Where the accused received property innocently but later decided to fraudulently appropriate it, this was held not to be larceny in Moynes v. Coopper [1956] 1 QB 459.

However where the property was received under a mistake on the part of the owner, and the accused knew of the mistake this constitutes larceny. In R v. Middleton (1873) LR. 2 C.C.R. 38 the accused had a savings bank account which held 11 shillings to his credit. He applied to withdraw 10 shillings but the bank clerk made a mistake and entered 8 pounds 16 shillings and 10 pence in the Accused’s deposit book, and stamped it. The Accused took the money, having formed an intent to permanently deprive the Post Master of the money. It was held that he was guilty of larceny.

In this case, there is circumstantial evidence which is capable of suggesting that the Accused at the time of each withdrawal on Counts 1,2,3,4,6,7 and 10 acted fraudulently and without an honest claim of right. One such piece of evidence is his deposit of only $201.31, another is his balance before the 4th of June deposit, another is the fact that he was a Sales Representative for another branch of the Colonial Group and another is that he was never advised by the Bank of any international deposits.

The question for the assessors is therefore whether at the time of the withdrawals from the ATM machines, the accused acted fraudulently, without an honest claim of right and with the intention to permanently deprive the Bank of the money. I consider that there is sufficient evidence which will allow the assessors to draw their own conclusions on the matter having been properly directed on the meaning of the mens rea elements and the burden and standard of proof.

In relation to the offences of obtaining by false pretences the elements of the offence are: 

1.	The Accused
2.	By
3.	Any false pretence
4.	Obtains money or goods
5.	For his own use or benefit.
6.	With intent to defraud.

On Count 5 and 8 the accused is alleged to have obtained groceries from R.B. Patel by falsely pretending that the money in his Easy Card Account belonged to him similarly on Counts 9, 11 and 12 he is alleged to have obtained goods from Morris Hedstrom and $10,000 cash from the Colonial Bank, by falsely pretending that the money on the Easy Card Account belonged to him. All relevant witnesses said in evidence that if they had known that the Accused was spending someone else’s money, they would not have parted with the goods or money. The State submits that by presenting his Easy Card, he was falsely representing that the money in his account was his. Further that when the money was recorded in this bank account in error ownership of it did not shift. Counsel relied on the case of R v. Mujenen Court of Appeal (Queensland) 281 /1992, 22.3.93 to submit that the transfer of funds was not with the Bank’s knowledge and consent, and that an ATM machine was incapable of giving such consent.

Thus, in this case the State says that when a person presents an Easy Card to a shop for payment he or she represents that

1)	he/she has a right to use the card
2)	he/she has sufficient funds in the account to pay for the goods and 
3)	the money is his/hers to use for payment.

What representations are made by a person presenting a cash card or access card is a question I believe for the assessors. They are men and women of the community and undoubtedly are accustomed to the normal financial transactions of members of the community. They can draw their own conclusions about what representations are made when a cash card is presented for payment.

Similarly, the question of whether the vendors and the Colonial Bank, were induced to part with money and goods as a result of the representation is a question of fact for the assessors as is the question of whether the Accused acted fraudulently and without an honest claim of right. However, the question of the ownership of the money is a matter of law. The Assessors will be directed that where physical control of money is given to the Accused by the mistake of the owner, possession of the money does not shift to the Accused because control was obtained by mistake.

On the facts and evidence of this case I consider that there is sufficient evidence to put to the assessors, counts 5, 8, 9, 11 and 12.

The Accused is put to his defence on all counts.

Nazhat Shameem
JUDGE
At Suva
25th January 2005