IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0025 OF 2004

BETWEEN:

STATE
Appellant

AND:

SIRILO RAMENATAVE
Respondent

Counsel: Mr. B. Solanki - for the State
Mr. A.K. Singh – for the Respondent

Date of Hearing: 1st February, 2005
Date of Judgment: 24th February, 2005

APPEAL JUDGMENT

Introduction

The respondent faced one charge of larceny alleging that he stole from the Australia and New Zealand Bank the sum of $8,533.20.

This is an appeal by the State against a ruling to acquit the Respondent following a successful “no case” submission.

Background

The respondent, a Police Officer, in receipt of a modest salary of $7,402.00 discovered the ANZ Bank had credited his account with an additional $8,533.20. This was a banking error.

The respondent tested the validity of this deposit by making various automatic withdrawals in the following week. He withdrew $300.00 from an ATM on the 24th of January. He withdrew an additional $300.00 from an ATM on the 25th of January. That same day he withdrew a further $100.00 from the ATM. The following day he completed a withdrawal slip for the sum of $8,000.00, went to the Bank and made that withdrawal with the bank’s special approval. 

When the bank discovered its mistake a criminal investigation was commenced. The respondent was caution interviewed (Exhibit 6) and admitted that he noticed the overpayment in his account but sought to explain that overpayment by claiming he thought it may have been for back pay. He went on to qualify that explanation by saying that he certainly was not expecting such a large sum. Bearing in mind his modest salary that is not surprising. 

The learned Magistrate having reviewed a comprehensive no case submission made by the respondent’s learned counsel Mr. Abhay Singh made three pivotal findings:

•	That the accused had a reasonable and honest belief that the money belonged to him.

•	That the bank was not the owner of the money.

•	That even if the bank were the owner of the money that it gave consent to the transfer of the funds into the hands of the respondent and therefore there could be no theft (see trial record pages 40 - 43 inclusive).

The learned Magistrate, with respect, overlooked the heart of the defence’s submission on the no case application. However, in the light of the ultimate decision on this appeal little turns on this point.

The Appeal

The State although outlining four separate grounds of appeal broke these into two groups.

The first was that the learned Magistrate erred in law in holding that the Australia and New Zealand Bank were not the owner of the deposited money. Counsel for the respondent conceded this point.

I accept the State’s submission that the learned Magistrate was in error in making that finding.

Property is defined under the Penal Code as:

“includes any description of real and personal property, money, debts and legacies, and all deeds and instruments relating to or evidencing the title or right to any property or giving a right to recover or receive any money or goods, and also includes not only such property as has been originally in the possession or under the control of any person, but also any property into or for which the same has been converted or exchanged, and anything acquired by such conversion or exchange whether immediately or otherwise.”

After a customer deposits money with a bank it comes under the control of the bank. The bank than owes a debt to the customer. In technical terms although the strict identification of the deposit made is lost in the maintenance of cash received by a bank its concept as a deposit remains and becomes a “chose-in-action” and therefore the “property” of the bank. The bank is in effect its owner.

I find at the conclusion of the Prosecution Case there was a prima facie case that this money was “property belonging to another” capable of theft. This view is fortified by the extended definition of theft contained in Section 259 of the Penal Code.

The section reads:

“The expression ‘takes’ includes obtaining the possession under a mistake on the part of the owner with the knowledge on the part of the taker that the possession has been so obtained.”

This extended definition of theft incorporates the provisions from the amendment to the English Thefts Act, Section 5(4). Taking advantage of the bank’s mistake by withdrawing funds credited in error can be theft.

As for grounds of appeal (b), (c) and (d) these can be summed up in the proposition that the learned Magistrate failed to properly assess the prosecution evidence about the respondent’s intentions.

The appellant claimed the respondent intended to deprive the bank of its property regardless of the funds true ownership. The State says the accused was not acting under any mistake or honest and reasonable belief in a bona fide claim to the fund. These were all available inferences or facts in evidence at the conclusion of the prosecution case, and so the State says there must have been a prima facie case.

The constable noticed an error in a deposit in his bank account and while he was expecting back pay he certainly wasn’t expecting a deposit of that size. His caution interview admissions confirm that.

PW.5 makes it clear that the accused’s salary was only $7,402.00 per annum. This is evidence that would make it unreasonable for the accused to expect to receive a year’s salary in back pay. 

A reasonable man would not expect to receive a back pay larger than the total amount of his annual salary. A reasonable man would have been put on his guard about the validity of such a large deposit. A reasonable man would know the money was not his. 

That this is so is confirmed by the respondent’s actions on discovering the deposit. He first tests the water by making several cautious automatic withdrawals and then goes to the bank to take out the full sum of $8,00.00. There was available evidence to suggest this respondent did not act reasonably. The irresistible inference being that he succumbed to the temptation of making a profit from the bank’s mistake.

At the conclusion of the prosecution case there was available evidence that the accused had acted dishonestly and had taken the ‘chose in action’. Putting it bluntly there was evidence he got the money from his account knowing it had been mistakenly deposited.

The respondent by the diligence of his learned counsel sort to argue that at the conclusion of the prosecution case there was no evidence of mens rea for theft. For the reasons outlined above I disagree. I similarly reject his submission on the availability of the defence of ‘mistake of fact’ on a ‘no case’ submission. That defence can only be available after the accused has given evidence about his state of mind and belief.

The learned Magistrate failed to properly address the evidence and isolate the correct legal principles for a ‘no case’ submission. For this reason the appeal must succeed.

The matter does not end there. It is said this offending occurred in January 2001. The trial took place in November 2003. The matter is stale. A referral back to the learned Magistrate now to conclude the hearing will lead to redundant justice by the time of the resumed case.

I am also mindful of the difficult legal technicality of the criminal law on theft for mistaken deposits. While the DPP may succeed on this appeal relating as it does to an incorrectly decided no case it is far from certain that he will obtain a conviction after the defence has rested and the higher criminal standard of proof beyond reasonable doubt applies.

The respondent has always adapted a reasonable attitude in his admission of civil liability. He has always remained willing to pay back the money to the bank. He has sworn an affidavit to that effect and he will make that payment provided his withheld police salary is reimbursed. 

For these reasons while I must refer the matter back to the learned Magistrate for resumption and conclusion of the hearing. I refer the learned Magistrate to the English decision of Attorney General’s Reference (No. 1 of 1983) a most similar case and their Lordships parting comments:

“Before parting with the case we would like to say that it should often be possible to resolve this type of situation without resorting to the criminal law. We do, however, accept that there may be occasions (of which this may have been one) where a prosecution is necessary. We do not feel it possible to answer the question posed to us in any more specific form than the form in which this opinion has been delivered and that is our answer to the question posed to us.”

This persuasive authority would tend to indicate on settlement of the debt the proceedings should be terminated.

Gerard Winter
JUDGE

At Suva
24th February, 2005