IN THE SOLOMON ISLANDS
MAGISTRATE COURT

Criminal Case No. 1789/2010

REGINA

V

DAVID DAY PACHA

Date of Hearing: 23/10/12
Date of Ruling: 29/10/12

Pros: Mr Augustine Aulanga & Mr Josaia Naigulevu
Deft: P Mr G. Suri

RULING ON SUBMISSION OF NOCASE TO ANSWER

Original Charge

1.	The defendant was charged with 1 count of conversion and 1 count of Abuse of office. The charges read as follows:

Count1: Conversion

Statement of Offence

C/s 278 (1) (c)(ii) Penal Code

Particulars of Offence

That David Pacha of Peochakuri Village, at Honiara in the Guadalcanal Province, between 1st October and November 03rd 2006 did solely received property which amounts to $148,950.00 on account of Rolland Seleso, converted the aforesaid property to his own use.

Count 2 Abuse of office C/S 96 of the Penal Code

Particulars offence

That David Pacha of Peochakuri Village, at Honiara in the Guadalcanal Province, between October and November 2006, being employed in the public service did direct to be done in abuse of the authority of his office an arbitrary act prejudicial to the rights of a person namely Rolland Seleso for purpose of gain.

Amended charges

(2)	The trial commenced on 5/3/12 with numerous adjournments and when it recommenced on 15/10/12 the crown amended the particulars of the charges. The amended charges read as follows:

Count1: Conversion

Statement of offence

Conversion c/s 278(1) (c) (ii) of the Penal Code.

Particulars of Offence

That David Pacha of Peochakuri Village, at Honiara in the Guadalcanal Province, between the 1st October and 24th November 2006 at Honiara solely received property being a sum of $148,950.00 on account of the South Guadalcanal Fibreglass Project chaired by Rolland Seleso, fraudulently converted the said property to the benefit of other persons.

Count 2: Abuse of office

Statement of Offence

Abuse of office, contrary to section 96 of the Penal Code

Particulars of offence

That David Pacha of Peochakuri Village, at Honiara in the Guadalcanal Province, between the 1st October and 24th November 2006 at Honiara being employed in the Public Service in abuse of the authority of his office did an arbitrary act prejudicial to the rights of another, namely, Rolland Seleso as chair of South Guadalcanal Fibreglass Project.

(3)	The original particulars in relation to the charge of conversion stated that the defendant received a sum of $148,950.00 on account of Rolland Seleso and he used that sum for his own use; whereas the amended particulars in relation to the charge of conversion states that the defendant received a sum of $148,950 on account of South Guadalcanal Fibreglass Project (SGFP) chaired by Rolland Seleso and fraudulently converted the said sum to the benefit of other persons.

(4)	The original charge for Abuse of office stated that the defendant being employed in the public service directed to be done in the abuse of the authority of his office an arbitrary act prejudicial to the rights of Rolland Seleso for purpose of gain; whereas the amended particulars allege that the defendant being employed in the public service in abuse of the authority of his office did an arbitrary act prejudicial to the rights of another, namely Rolland Seleso as Chair of South Guadalcanal Fibreglass Project.

(5)	At the close of Crown's case the defence counsel has made a submission of no case to answer pursuant to the provisions of S197 of the CPC which reads as:

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused".

(6)	The case of R v/s Lutu (1985) (86) SILR 249 is the authority on the application of S197 of Criminal Procedure Code. In Lutu CJ Ward stated as pages 250-251

"In this case I am the judge both of fact and law. As such my duty to decide whether a case has been made out sufficiently to require the accused to make a defence under section 196 goes further than that of a judge sitting with a jury.

Thus if at the close of the prosecution case, as judge of fact, do not feel that there is sufficient evidence even at that stage on which I could convict, I should stop the case.

I feel that the words in section 196 that were it appears to the court that a case is not made out sufficiently to require (the accused) to make a defence" suggest that, where the tribunal is judge of fact as well as law, it is entitled to consider the sufficiency of the evidence at the close of the prosecution case" (at p 3 of Tara judgment).

In Lutu, Ward CJ further states that "clearly this is not the time to evaluate such matters as discrepancies between witnesses, or which parts of the evidence are credible and accurate and which are not. These are all matters for the conclusion of the evidence as whole and, where there is evidence that could result in a conviction, then the accused must be put to his defence.

Where, however, there is some evidence but it is so little or unconvincing that it is insufficient even if uncontradicted by the defence to make a conviction possible, the court should not require the accused to make a defence" (at p 3).

(7)	Between the 1st October and 24th November 2006 the defendant was a member of the National Parliament for South Guadalcanal Constituency and was the care taker Minister for the Mines and the Energy and by nature of that appointment he was a public servant.

(8)	The Crown's case is that the defendant prevailed on persons managing the funds to transfer the sum of $148,950 into his South Guadalcanal Constituency account which was under his control, and the transfer was done contrary to the established disbursement procedures. The funds were managed by the Ministry of Infrastructure Development (MID) and payment could only be authorised after pro forma invoices were submitted by the project chairman Rolland Seleso.

(9)	Rolland Seleso put in a proposal for a project in the sum of $350,000 to the Republic of China (ROC) on or about the 21st April 2005. The proposal is marked as Ex P1 T13 pp 39-42.

(10)	The proposal was endorsed by Victor Totu (PW3) as the Member of Parliament for South Guadalcanal Constituency and it was signed by Rolland Seleso as the chairman of South Guadalcanal Fibreglass Project (SGFP) and Alister Mona as a member of SGFP

(11)	The project proposal was supported by the PM Sir Allan Kemakeza

(12)	The project originated as a result of the ethnic tension that faced Solomon Island in the year 2000. According to the project background it had the backing of the traditional leaders of South Guadalcanal and the project committee was to embark on an income generating scheme for the benefit of the South Guadalcanal constituents. The project committee hoped to raise sufficient funds to enable it to undertake other income generating projects such as sawmilling, agricultural produce marketing and/or fishing (see p.3 of the project).

(13)	The members of the project committee were:

Rolland Seleso 	Chairman	
Michael Rueben	Member	
Alister Morris	Member	
Malon Pero	Member	

The project committee was to supervise the project to ensure that all the work was carried out according to the programme.

(14)	The proposed budget for the project was as follows:

Material	$205,788.00	
Accessories	$5,000.00	
Tool and equipment	$125,527.00	
Labour, overhead and operating costs		
(Applicant's own costs) 10% contingency	$13,685.20	
Total Project Proposal 	$350,000.20	

(15)	On 31/8/05 ROC approved the project and agreed to allocate a sum of $300,000 in 2 payments. The 1st payment of $150,000 was paid into the Central Bank of Solomon Islands and the second was to have been paid upon submission of acquittal report to ROC as to how the first payment was used. 

(16)	Subsequently the sum of $150,000 was paid into an account operated by MID and it was later paid out to the suppliers of the materials to enable the project committee to commence building boat. 

(17)	According to the project proposal the manufacturing of the boat was to have been done by a manufacturing company called Universal Fibreglass Enterprises. This was a registered business and the certificate of registration stated that Rolland Seleso, Dougls Ete, Michael Reuben and Malon Pero were carrying a business under the name of Universal Fibreglass Enterprise.

(18)	After the first project was made out to the project committee some boat manufacturing was carried out and the project committee submitted an acquittal report (Ex P1 T17 pp 49 – 59) The summary of expenditure of the project is at p54 and for a total expenditure of $149 723.93. There is absolutely no allocation for labour costs when the intention behind the project was to create employment and further the original proposal did not mention anything about building a warehouse but a warehouse was constructed at Henderson.

(19)	The acquittal report also stated that a total of 12 fibreglass canoes/boats were manufactured from the fund but the report did not mention that the canoes/boats were sold for the sum of $38,000 each and for the total sum of $456,000 ($38,000 x 12).

(20)	Rolland Seleso in his evidence said his company Universal Fibreglass Enterprise was the sole beneficiary of the project and not the constituents of South Guadalcanal Constituency, but when the project was initially submitted it was disguised in such a way to suggest that it was for the benefit of the South Guadalcanal Constituency.

(21)	Victor Totu had indicated that he was going to pay $50,000 to the committee from his RCDF fund as only $300,000 was approved by ROC and he said he also said that he only endorsed the project after he was satisfied it was going to benefit his constituency.

(22)	In the acquittal report it was not mentioned by Rolland Seleso or his committee that the 12 boats/canoes were sold for the total sum of $456,000 (12 x $38,000) and that his company Universal Fibreglass Enterprise alone benefitted from the said sum of $456,000.

(23)	From Rolland Seleso's evidence it is abundantly clear that Universal Fibreglass Enterprise was the sole beneficiary of the project and therefore the formation of the project committee was again disguised in a way to be the representative of the constituents of South Guadalcanal Constituency and when that was never his intention and nor the members of his committee.

(24)	ROC released the second payment of $150,000 on 31/7/2006 upon receipt of the acquittal report. By 2006 there was a general election and Victor Totu lost his seat to the defendant and ROC sent a copy its letter to the defendant who was the MP for South Guadalcanal Constituency (see Ex P1 T10 p27)

(25)	The sum of $150,000 was paid into the Central Bank of Solomon Islands and it was later paid into the MID account which was to manage the project. 

(26)	The defendant after receipt of the letter from ROC obtained pro forma invoice for the purchase of 4 outboard motors from Lee Kwok Kwen (see Ex P1 T6 p23) for a total cost of $75,350 and obtained another invoice for purchase of 4 canoes/boat at a cost of $80,000 and submitted these pro forma invoices to Grace Hebala the Chief Accountant of MID and subsequently the funds in the sum of $148,950 was released to the South Guadalcanal Constituency account and the defendant paid for the pro forma invoices for the out board motors and boats which were subsequently given to the 3 wards of South Guadalcanal constituency namely Dui Dui, Vatukula, Talise in an official handing over ceremony. 

(27)	Rolland Seleso subsequently came to know about the handing over of the cheque to the defendant and he approached the defendant a few times and by which time the monies were already spent and the defendant ignored him and he lodged a complaint to the police.

(28)	Before lodging the complaint with the police Rolland Seleso went to see Grace Hebala and she gave him copies of the documents that the defendant had submitted to MID and he gave copies of these documents including the project proposal to the police. When he gave the copy of the project proposal the cover sheet (Ex D1) was omitted. Ex D1 had written on it South Guadalcanal Constituency and had a Solomon Islands flag and Fibreglass Canoe Project was also written on it.

(29)	On 2/5/10 the defendant participated in a record of interview conducted by PC Kennedy Isou at the office of Ministry of Mines & Energy.

MID File

(30)	The police were unable to locate the MID file and it is most unfortunate as it would have contained important and material documents.

(31)	As a result of the release of the sum of $148 950 the defendant now is charged with 1 count of conversion and 1 count of Abuse of office. The 2 charges have certain degree of an overlap and as a matter of course I shall deal with count 2 first as that would have occurred before count 1.

Evidence on Count 2

(32)	The main evidence on Count 2 is that of Grace Hebala. She said that the defendant attended to her at her office at MID and he used his position to force her to transfer the funds to his constituency account. She said she was worried about her employment and was scared of him as an MP. She further said that he spoke to her very strongly and told her that in no uncertain terms he was there to collect the cheque and not argue with her and she further said that she was not unrealistic in her fear of losing employment. The prosecution in their submission said 

"......she must have been overborne by his taller and bigger stature and his harsh and overbearing tone. She was a woman of small built and unassuming."

(33)	Her cross-examination revealed that she was the one who gave the figure of $148,950.00, as the defendant did not know the exact figure. I must admit that this stage of the trial I should not evaluate the discrepancies between the witnesses' evidence as this is a matter for consideration at the conclusion of the trial but being the judge of both fact and law I guess I must do so now.

(34)	When Rolland Seleso saw Grace Hebala she did not mention to him that the defendant had forced her to pay the money into his constituency account. 

(35)	In the record of interview question and answer 38 was follows:

Q:	Did you personally go to MID and spoke with the accountant anytime to request the transfer of that fund?	
		
A:	I made follow up phone calls to check whether the funds were available for collection. This is just a normal follow up.	

(36)	If Grace Hebala was indeed coerced into giving the cheque to the defendant then she would have given that information to PC Kennedy Isou but his question clearly suggests that the defendant only made a request and not coerced her.

(37)	Further Grace Hebala was only a requisition officer and she did not have the authority to make the payment. Her evidence is that notwithstanding the preparation of the requisition or payment voucher the payment can still be declined if the financial guidelines are not met. The Permanent Secretary for MID at the material time was Peter Hauia. He did not give evidence and his statement dated 2/7/10 was tendered by consent (Ex P3 (e)) and in his statement he stated as follows:

"The said project money was paid into MID project account and the only way this money could be transferred into any Constituency account is for the said Honourable Member to make a formal request to the Prime Minister's office. The PM's office then conveys their approval to MID for the release. That was the normal practice but not absolutely necessary. The other option was if there was no formal approval, our Minister could then advise us to release the funds if there was a verbal discussion and understanding. Our Minister at that time was Stanely Sopu, who is currently the care-taker Minister of MID and outgoing Member of Parliament for East Kwaio Constituency.

As in this case, I am not absolutely sure if there was an approval from the PM's office in relation to this matter, but there were a number of memos from the PM's office for approval of certain projects money to be transferred into Honourable Members Constituency accounts during that time.

The above mentioned suggests that he only signed the cheque as he had an approval from the Prime Minister's Office.

(38)	The other signatory to the cheque was Ontona Riringa and he in statement dated 1/4/12 said as follows:

"I was explained by Kennedy Isou that the ROC second tranche for this project (amount of $150,000 paid in 2006) was transferred from the NBSI MID ROC project account into another account with another commercial bank. My advice to DC Isou is that the instruction must have been from the responsible MID officer or the respective signatories to that account – it does not come from the MoFT or the Accountant General's office. I am not aware of any such instruction either."

And in his subsequent statement dated 25/4/12 he said:

"MID is the one responsible for this NBSI account and they have to produce documents to support this payment, although I cannot recall the documents now."

(39	Question and answer 32 of the record of interview was as follows:

(Q) Were you aware that the money was second tranche payment for South Guadalcanal project?	

(A) I don't know anything about the first or second tranche payment. All I know is there is money for South Guadalcanal Fibreglass Project. I was made aware by the ROC Ambassador at that time verbally and later formalities. 

(40)	The answer to question32 suggests that the ROC Ambassador advised the defendant verbally and later by way of formalities. It was not clarified in the record of interview as to what formalities the defendant was referring to. Was he referring to the letter dated 31/7/2006 (Exhibit Ex P1T10p27) or some other letter. The answer is open ended and in light of that answer the prosecution was under an obligation to call the ROC Ambassador or some representative from ROC to clarify this

(41)	Stanley Sofu was the Minister for MID in 2006 and he in his statement stated:

"The Prime Minister at that time was Hon. Manasseh Sogavare. I am aware that ROC funds under special projects for that time falls under the jurisdiction of the Prime Minister during that time. But I am not sure whether the instruction to transfer the project fund into South Guadalcanal Constituency bank account was given by the Honourable Prime Minister."

(42)	Both Peter Hauia the signatory to the cheque and Stanley Sofu the responsible minister are not sure whether the PM Manassah Sogavare issued the instructions to transfer the funds into the defendant's constituency account and Peter said it is more than probable that the PM did so. .

(43)	The other issue is whether the rights of Rolland Seleso as chairman of SGFP were prejudiced. Rolland said that Universal Fibreglass was the sole beneficiary of the fund and that would mean that SGFP was only used a front when the project proposal was put in and if that is the case then how was the rights of SGFP prejudiced? 

Count 1:

(44)	I reiterate what I said in relation to count2 about Rolland Seleso as chair of SGFP, and as to whether the cheque for $148 950 indeed belonged to SGFP or it belonged to Universal Fibreglass Enterprise (UFE). According to Rolland Seleso UFE was the ultimate beneficiary so again SGFP was only a front.

(45)	It is not in dispute that the defendant received the sum of $148 950 and the only issue for determination is whether the defendant fraudulently converted it to the benefit of others.

(46)	In this case the defendant used the money for the exact purposes that was mentioned to MID by way of pro forma invoices and I say again that this count & count 2 has certain overlap and there is no evidence that the defendant used the money for any other purposes, other than that he had already mentioned to MID and further MID only paid the money after it obtain approval from the Prime Minister's office. So there is no evidence of fraudulent conversion.

Conclusion
(47)	As a result of what I have discussed above I am left in serious doubt and since I sit as both the judge and jury, I must stop the trial on both counts at this stage as there is insufficient evidence on which I could convict and so the defendant is acquitted on both counts. 

(48)	I wish to make one final observation with respect to Rolland Seleso's evidence. He stated in the acquittal report that he manufactured 12 boats/canoes and in his cross-examination he said he sold the 12 boats for $38,000 each. But in questions to the court he said that his company only manufactured 7 or 8 boats and he sold them for $34,000 each. So I am just wondering as to what is the truth? 

Shafi Khan
Principal Magistrate