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R v Tome [2021] SBHC 135; HCSI-CRC 502 of 2019 (22 September 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 502 of 2019

REGINA

V

DAVID TOME

Date of Judgment: 22 September 2021

Andrew E Kelesi for the Prosecution
John S Taupongi for the Defence

RULING

1. This is an appeal against the judgment of the Magistrates' Court on 31^st May 2018, in which the Respondent David Tome was acquitted on one count of conversion contrary to section 278 (1) (c) of the Penal Code.

Both Counsels provided written submissions for the appeal.

The Appellant’s Case

2. The Appellant’s case is the Magistrate erred in fact and law when he failed to act on his findings that the $80,000 payable to Baegu/Asifolae Constituency (BAC) was based on the application by Grass Root Economic Development Communities (GREDC) for their Reforestation project to the Ministry of Forestry and Research (MFR).
3. The money which the Respondent claimed that he honestly mistook the direct allocation to each of the fifty constituencies is for the benefit of GREDC or any other constituent of BAC.

The findings of facts support the Crown’s case, but the magistrate acquitted the accused/respondent on the charge of conversion.

The Payment of the Money

4. The MFR raised in Payment Voucher of the $80,000 and forwarded it to the Finance Ministry and an ANZ cheque no 237625 of the money was paid into the BAC account.

The Issue

5. Whether the Respondent was entrusted and or knew a ANZ cheque no. 237625 for $80,000 payable or deposited into Baegu/Asifolae Constituency account for the benefit of the GREDC?

Finding in the Judgment

6. Briefly the notes of trial Magistrate in the judgment contained the facts that an application by GREDC for a Reforestation project was made by Shem Tome (PW1) to the Ministry of Forestry and Research (MFR). The Permanent Secretary of MFR approved the application and fund of $80,000 was raised and forward it to the Ministry of Finance. The Finance Ministry then issued an ANZ cheque no 237625 for $80,000 was payable to BAC.
7. The notes in the judgment further stated that the applicant did not make any application to the Respondent nor the Respondent knew that the fund for the benefit of GREDC was deposited in the BAC account. Respondent only knew that the forest fund deposited in the Constituency account was for him to administer or application submitted through him or his office.
8. These facts are also clear in the magistrate’s judgment:
   • (i) The GREDC was registered as Charitable Trust Organisation under Charitable Act (Cap 55) on 11^th February 2011,
   • (ii) An application of $80,000 by GREDC for Reforestation was submitted by Shem Tome (PW1) to the MFR (No date disclosed),
   • (iii) The application was endorsed by Mr. Richard Raomae (PW6) - Director of Reforestation on 30^th June 2011,
   • (iv) The application was approved by Mr. Ronald Unusi (PW5)– then Permanent Secretary of MFR on 19^th July 2011,
   • (v) Requestion for payment of $80,000 to BAC under the Reforestation Development Program 2011 raised by Senior Accountant Officer of MFR Mr. Coleman Vuke (PW8) – 1^st August 201,
   • (vi) General Payment Voucher was raised by Mr. Coleman Vuke on 17^th August 2011 certified by Patteson Devi (PW3) on the same day sent to the Ministry of Finance to be paid,
9. It was as result of the process, an ANZ cheque no. 237625 for $80,000 payable or deposited into BAC account.
10. The notes of trial Magistrate’s judgment further disclosed that amidst the process or application by the GREDC to the MFR, the Cabinet had made a decision by way of Cabinet Conclusion as exhibit “P12” for Four Million Dollars ($4,000,000) to be allocated to each Constituency and Member of the Parliament thus includes the MFR Reforestation funds. As such the MFR standard application form at the introductory part for the fund was amended to cater or provide for the Cabinet’s decision. It simply provides that all the reforestation application and payment to be made through the Member of Parliament (MP’s).

This process was explained or stated in the evidence of Mr. Ronald Unusi (PW5) – the then Permanent Secretary of MFR.
The trial magistrate’s notes in the judgment further stated:

• (i) the application by Shem Tome for GREDC was submitted direct to the MFR for the $80,000,
• (ii) that Permanent Secretary of MFR told Mr Shem Tome that he would submit the application to BAC,
• (iii) It was approved by the then Permanent Secretary of MFR’
• (iv) the direction from the MFR was for the money to be paid into the Respondent’s BAC account in compliance with Cabinet’s Decision.
• (v) the Respondent did not endorse nor he had received any application from GREDC,
• (vi) the Respondent did not know any $80,000 for the benefit of GREDC was deposited in the BAC account;
• (vii) the Respondent only knew the money deposited in his Consistency’s account was for the Reforestation and for him to administer per the Cabinet’s decision.

11. With the above related facts, it raised an issue to the trial magistrate, whether the Respondent knew that he was entrusted with the money for the benefit of GREDC or otherwise as described by him as the Respondent honestly mistook $80,000 funding as per Exhibit no. P12, a direct allocation to each constituency.
12. The trial magistrate found that the Crown did not prove in the evidences that the Respondent knew that he was entrusted with the $80,000 and that the intended beneficiary was the GREDC.
13. With all respect, I cannot agree to Crown’s appeal with the submission. The notes of the learned Magistrate in the judgment showed clearly that the Crown fail to prove that the Respondent knew that the intended beneficiary was GREDC, thus he cannot to be liable for conversion contrary to section 278 (1) (c) of the Penal Code.
14. The Crown has not any proof any error of law nor the facts had been shown in this appeal that would warrant this court to intervene and accordingly the appeal is dismissed.

Orders of the Court:

1. Appeal dismissed,
2. Orders of the Magistrates' Court is upheld.

THE COURT
Hon. Justice Leonard R Maina
Puisne Judge