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Regina v Ria [1993] SBHC 77; HCSI-CRC 9 of 1993 (7 December 1993)

CRC 9 -93.HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.9 of 1993

REGINA

-v-

SOTERE RIA

High Court of Solomon Islands
(Palmer J.)

Criminal Case No.9 of 1993

Hearing: 9 November 1993
Judgment: 7 December 1993

R.B. Talasasa for Prosecution
P. Tegavota for the Defendant

PALMER J: The Accused, Sotere Ria has been charged with two counts of forgery contrary to section 329(2)(a) of the Penal Code and conversion contrary to section 271(c) of the Penal Code. He has pleaded not guilty to all those charges.

The particulars of count one read, that Sotere Ria of Tangarare village, West Guadalcanal at Honiara on the 16th day of November forged a valuable security, namely a Harvest Pacific Limited Cash Sales receipt to wit, by altering the receipt No. 05709 to read as 05708.

The particulars of count two read “that Sotere Ria ....on the 16th day of November 1990 forged a valuable security namely a Harvest Pacific Limited Cash Sales Receipt No. 05709, to wit, by altering the total sum of $520 paid on the said receipt to read as $1,004.00.” The particulars in counts one and two related to the same document.

The particulars of count three read, that the accused did between the 12th of November 1990 and 25th February 1991 having been entrusted solely with $1569.00 in order that he may apply the said property for the purpose of conducting a village Health Implementation Programme in South Malaita, fraudently converted part of the said property, that is to say, $1,004.00 to his own use and benefit. This count relates directly to count 1 and 2 and will fall or stand depending on the above two counts.

Facts not in dispute can be summarised as follows.

On the 2nd of October 1992 requisition was made for an imprest, in the name of the accused, in the sum of $1569.00, to conduct a village health implementation programme in 6 villages of Central and South Malaita from the 16th of October 1990 to 26th October 1990. A copy of that requisition is marked exhibit 8. Exhibit 9 contains the breakdown of the manner in which it was expected that the imprest would be expended. Exhibit 10 is a copy of the imprest warrant itself and numbered 135/90.

The amount of $1569.00 was raised in a composite cheque no. 71655 (NBSI CHEQUE) in the sum of $10,026.50 and dated 11th October 1990. The sum of $1569.00 was withdrawn by the accused from the passbook account no. 0311561236010, in the name of Kilufi Primary Health Care Fund. Dr Menon and Amos Lapo were the signatories to that account and it was confirmed in evidence by the witness, Lapo, that the accused went personally to collect the money at the bank.

The accused was the co-ordinator of the village health implementation programme. In his evidence under oath the accused stated that he was busy with the training of nurse’s and nurse-aids for the three months in September, October and November, and accordingly could not be involved in the running of the health programme. This is confirmed in the evidence of Oliver Oli who stated that the programme was run basically by himself with two other assistants.

In his evidence under oath Oliver Oli stated that he was given only $200.00 by the accused to run the programme. However, the receipts as submitted by him added up to more than $200.00. In his evidence under oath, Oliver Oli did point out that it had been sometime since he dealt with the funds and that it was possible that he may have been mistaken. The accused also pointed out that it was possible that he may have given certain sums of money as and when they were needed by Mr. Oli.

In such case, where because of the time lapse, and the powers of recall of the witnesses may have been affected, I feel bound to go along with what is contained in the receipts, and accept the total amount as added up, as giving the correct amount that was actually given to Oliver Olio. Mr. Oli did say that it was possible that he used his own money for the expenses which went beyond the $200.00 mark, but unfortunately he could not identify what they were, and also did not appear confident when he said this.

It is also not disputed that the original receipts from Harvest Pacific Ltd, numbered 05709 were each dated the 5th of March 1991, and were for items to the value of $4.00 and $520.00 respectively. The description for the goods under receipt no. 05708 was for 10 copies at $0.40 each, whilst for the receipt no. 05709, it was for one only cartridge for $520.00. This cartridge was paid for under cheque no. 095433 (Westpac Banking Corporation) and dated 5th March 1991. The cheque belonged to the Save the Children F/Australia, but the cartridge was bought specifically for Kilufi Hospital, at their request.

On the 7th of February 1991, the accused drew up an expenditure ledger (exhibit 5). This contained all the details of expenditure pertaining to the use of the imprest of $1,569.00. Under transport, $266.95 was used, whilst for office supply, a total of $1,296.75. Under miscellaneous, $530 was expended.

There is also a statement of expenditure dated the 8th February 1991 which contained a breakdown of the above same details. That statement was certified correct by the accused and another nursing officer, Moses Leoniki. Mr. Leoniki had given clear evidence before this court, to say that he did sign the documents, but that he was not aware of how the funds had been expended. He only agreed to sign the document because he trusted the accused as a senior and responsible nursing officer, that everything was properly accounted for. At that time, he said he was at Malu’u, and not involved in this village health implementation programme, so he would not know what was going on. I have observed Mr. Leoniki giving evidence, and I am satisfied that he was speaking the truth. This document therefore is of limited value.

The evidence of prosecution against this accused is basically circumstantial. It relies on the evidence of witnesses who have clearly painted a picture before this court that the accused has something to answer for, in respect of a forged or altered receipts that he has lodged, to give the false impression of a balanced expenditure.

When the accused retired the imprest warrant no. 135/90 on or about the 8th of February 1991, one of the receipts attached was a receipt that had been signed by the accused himself. (no. 44), and dated 16/10/90, for the payments of two photocopier cartridges at $502/ cartridge from Harvest Pacific Ltd. This receipt was rejected by JUNTA, a special body set up by the Government specifically for the purpose of scrutinising expenditures by Government Department and Officials. JUNTA requested that the original receipt from Harvest Pacific Ltd be obtained. This was communicated it seems by the Accountant of the Ministry of Health and Medical Services at Honiara, Clyde Funusui to the accused.

By letter dated 25/2/91 addressed to Clyde and copied to the Chairman of JUNTA, the accused stated that the original receipt had been lost, however, he had simply re-receipted it for two cartridges of PC7 photocopier type, at $502.00 per cartridge. This explanation was still not satisfactory to JUNTA, and so the accused was asked it seems to obtain copies of the receipt from Harvest Pacific Ltd.

In his evidence under oath, the accused stated that he rang and spoke with a lady at Harvest Pacific Ltd to send over a copy of that receipt in which two cartridges had been bought. The only copy of the receipt received and produced by the accused was the altered one of the Harvest Pacific Ltd receipt no. 05709. This altered receipt is marked exhibit 2. It is clear to me that the details in the original receipt no. 05709 had been altered by someone. The alterations included:

(i) the last number of the receipt 05709 to read 05708;

(ii) the date from 5/3/91 to read 16/11/90;

(iii) the quantity which was 1 to read 2;

(iv) the unit price which was $520.00 to read $502.00; and

(v) the amount and the total from $520.00 to read $1004.00.

In his explanations, the accused stated that the original receipt received from Dr. Menon was for the sum of $1,004.00 for two cartridges. He stated under oath that he had given $1,200.00 to Dr Menon to buy some cartridges for the photocopier and some stationery in Honiara. However, Dr Menon took only $1,004.00 for the photocopier cartridges and returned the rest to him.

In his examination in chief, he stated that he spoke with Dr. Gurun about what to do with the remainder of the money he had left from the Village Health Implementation Programme. Dr. Gurun told him to purchase stationeries with the money, because there would not be any more funds available for the following year and so he might as well use the money.

Later on in his examination in chief he stated that Dr Menon told him to buy two cartridges and so he gave him the money.

The accused stated that Dr Menon gave him one toner to use for the photocopier but kept the other one for his use. He was also given a receipt by Dr Menon but that this had been lost by him whilst travelling to Honiara in a ship.

In his, evidence under oath, the accused stated that the receipt 05708 (exhibit 2) as altered, was received by him in that state from Dr Menon. He had then submitted that receipt as received.

It is clear beyond doubt that 05708 (exhibit 2) is not a genuine receipt. The witnesses called who were workers from Harvest Pacific Limited all stated very clearly that no such receipt was issued for the 16/11/90. The witness, Lionel Hong, a Manager of Harvest, Pacific Limited submitted eight copies of cash sales receipt nos. 04923 to 04930, being the receipts for the 16/11/90.

The original copies of the receipts numbers 05708 and 05709 from Harvest Pacific and each dated the 5th of March 1991 have also been submitted as exhibits 3 and 4.

None of the witnesses from Harvest Pacific Limited could ever confirm receiving any phone call from the accused as stated in his evidence about sending any photocopies of any receipts. It is obvious that no cartridge was bought from Harvest Pacific Limited with the $1,004.00. There is no such receipt in existence. There is absolutely no evidence whatsoever that any photocopier cartridge was bought from Harvest Pacific Limited on the 16/11/90.

The receipt (exhibit 2) has simply been forged from a copy of the original receipt no. 05709. This forgery must have occurred sometime after the 5th of March 1991. The crucial question is who did it? The prosecution alleges it is the accused. Has that onus been established to the required standard?

Prosecution have established that exhibit 2 is a false receipt and that it had been forged from the original Harvest Pacific Limited receipt no. 05709 dated the 5/3/91. They have established that the accused submitted his own receipt no.’ 44 initially for two photocopier cartridges when he first retired the imprest. When asked to produce the original or copies of the original from Harvest Pacific Limited, he submitted exhibit two (the forged receipt).

No direct evidence whatsoever has been produced to show that the accused forged exhibit 2. The allegation rather has come about through a process of deduction. That because the accused submitted the receipt (exhibit 2) that he must have forged it and converted the money to his own use! This is fine insofar as no explanation has been provided. However, the accused has provided an explanation which I need to consider in detail.

In his explanation he stated that he gave the $1.004.00 to Dr Menon to purchase the two photocopier cartridges. He says that the two cartridges were bought by Dr. Menon at Harvest Pacific Limited. When he sought to provide an explanation for the receipt no. 44 for $1,004.00 under letter dated 25/02/91 (exhibit 2), he .stated that the original receipt had been lost whilst travelling from Honiara to Auki. However;” logically speaking, there could not have been any original receipt of exhibit 2. So what sort of receipt did the accused receive from Dr Menon for the alleged two photocopier cartridges.

There are two possible explanations. Either the accused is lying, or that indeed a receipt was produced by Dr Menon. Can I discount the latter possibility? The accused in essence in his explanation has shifted the blame or guilt so to speak, on to Dr. Menon. In other words he is pleading innocence in the forgery of the receipt 05708 (exhibit 2). He says that the receipts were produced to him in both occasions by Dr Menlon, and he has accepted them as genuine. He got two cartridges for the money, one as seen by the witness Amos Lapo and the other kept by Dr Menon. By shifting the onus of blame on to Dr Menon, has a gap been created which is crucial to this case?

The receipt (exhibit 2) was produced after the original receipt no. 44 and the subsequent explanations made by the accused in his letter of the 25/02/91 were not accepted by JUNTA. It seems a strange coincidence that on the 5/3/91, a purchase should have been made by Kilufi Hospital for a photocopier cartridge and subsequently a copy of that receipt was then altered for purposes of covering up the $1,004.00.

It is clear to me that the $1,004.00 was never used for the purchase of 2 photocopier cartridges at Harvest Pacific Limited. It is clear to me that there is no such thing as an original receipt of exhibit 2 which the accused received sometime before the 5/3/91 and which he says he lost in his way from Auki to Honiara. So what sort of receipt did Dr Menon produce as alleged by this witness? That other receipt will have to be a false receipt. Is the accused lying? Is it safe for me to conclude as prosecution is urging me to say that because this accused is lying that therefore he is guilty!

The veracity of the accused’s defence can only be confirmed or denied by Dr Menon. What the accused’s defence has done is to shift the blame on to Dr Menon, which is a very serious allegation, and in my view, one which should not be lightly done, but that that other person should be given the opportunity to defend himself.

It is quite possible that this accused is speaking the truth. That Dr Menon is the guilty party, and if not then Dr Menon is a party to a criminal scheme to defraud the Government of Solomon Islands for $1,004.00.

It is unfortunate for the prosecution that Dr Menon is no longer in the country.

I don’t know if any attempts had been made since the 28/4/92, when it first became obvious that the blame was being shifted to Dr Menon, to get in touch with him. Whatever it is, it is crucial in my view that his evidence should have been sought. I know and understand that the question of costs and practical difficulties in locating this witness are real stumbling blocks. However, the price of justice is never cheap, and all possible measures and means should be undertaken, even if it would mean, in the case of Dr Menon, to have him brought over for the trial and returned to his home country.

As it is, the prosecution’s case is incomplete. It is incomplete in the sense that a crucial link in the chain is missing. This is not to say that the prosecution case has not been well presented. Rather, it seems it has been plagued with an unfortunate and unavoidable matter, but perhaps fortunate for the accused.

It is most likely that the accused committed the offences as alleged. However, to bridge the gap to the point where I am certain to be sure, in my view can only be achieved through hearing the evidence of Dr Menon.

The accused will accordingly be acquitted. However, that does not relieve him of the responsibility of accounting for the $1,004.00. As far as the evidence goes, he has not satisfactorily accounted for the $1,004.00 as the imprest holder and accordingly should be required to refund that sum to the government as a debt owed. He can then make a claim from Dr Menon for that same amount, since as far as he is concerned it was Dr Menon who misused the money.

The accused is acquitted of all offences.

(A.R. Palmer)
JUDGE