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Gaunavinaka v State [1995] FJCA 29; AAU0014.1994S (26 May 1995)

IN THE FIJI COURT OF APPEAL
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. AAU0014 OF 1994S
(High Court Criminal Case No. 26 of 1990)

BETWEEN

KITIONE KOROILAGILAGI T. GAUNAVINAKA
APPELLANT

and

THE STATE
RESPONDENT

Mr for the Appellant
Mr for the Respondent

Date and Place of Hearing: 25th May 1995, Suva
Date of Delivery of Judgment: 26th May 1995

JUDGMENT OF THE COURT

The appellant was charged in the High Court before three assessors with 3 counts of larceny by a servant; 6 counts of obtaining money by false pretences; and 1 count of fraudulent falsification of accounts. The presiding Judge adopted the majority decisions of the assessors and found the appellant "not guilty" on 6 of the 10 counts with which he was charged; and agreed with the decisions of the assessors to find the appellant "guilty" on the 4 remaining counts.

The appellant now appeals against those four convictions and the custodial sentences of 3 years imprisonment on 3 of the offences of obtaining money by false pretences; and 1 years imprisonment on a further offence of obtaining money by false pretences; all the terms to be served concurrently - an effective sentence of 3 years imprisonment.

Background

The appellant was previously employed by the Westpac Banking Corporation. He commenced duties with that Bank on the 1st August 1984 and resigned in December 1989. In 1987 he worked in Westpac's International Business area and was, when he resigned on the 4th December 1989, relieving Foreign Exchange Support Officer whose main duty was to verify daily all the foreign Exchange deal transactions over FJD 500 from printouts of computers against vouchers received. It was said he was fully trained and competent in all areas of international business and knew how the various systems worked.

Angeline Lalit Ram was the accountant in charge of the administration and day to day operation of the Banks foreign currency accounts where the appellant worked. She described him as a very competent officer, who excelled in every branch of the Banks activities. It was she who had trained the appellant in all fields of the Bank's foreign business. She had also recommended him as an outstanding reconciler of the Mirror Account which was an integral component of the foreign exchange operations. As a result of that recommendation he received commendation and a monetary present as well.

Following the appellants resignation in December 1989 he was extradited from Australia and arrested at Nadi Airport on the 7 June 1990. He was tried before 3 assessors; found guilty on four counts of obtaining in total the sum of $6900 by means of false pretences contrary to Section 309(a) of the Penal Code Cap. 17; and was sentenced to concurrent terms of 3 years and 1 years imprisonment.

He now appeals against both convictions and sentence.

The grounds of appeal - against conviction

The appeal against conviction relates principally to the evidence of the prosecution that funds were not paid into Mr Komaisuva's account in Suva from the three London Banks viz. the Midland Bank; Lloyds of London; and the Bank of Scotland. Rather the funds were paid into that account by the appellant's false manipulation of the Banks foreign currency accounts system.

The appellant alleges that the prosecution has failed -

"1. to produce documentary evidence from any of those 3 London Banks to prove that no payments were in fact made;

2. to prove that Mr Komaisuva's account was false;
   
3. to establish that the funds in Mr Komaisuva's account were stolen;
   
4. to identify Mr Komaisuva who has not reported any alleged funds remitted from England as being stole from his account."
   

The Prosecution

The record discloses there were 16 witnesses from the Westpac Bank at Suva who gave evidence of the various transactions that constituted the credits in Mr Komaisuva's account that was opened by the appellant himself with a $10 deposit; and the substantial withdrawals from that account, all arranged by the appellant.

That evidence clearly establishes the procedure adopted by the appellant. He created a credit in the Komaisuva account by means of fictitious transactions credited to the Sterling Mirror Account. That evidence further disclosed that the withdrawals were arranged by the appellant personally and never by the holder of the account Mr Komaisuva.

Among the numerous exhibits produced at the trial was Exhibit No. 14, the original Statement taken from the appellant following his extradition from Australia and arrest at Nadi Airport. In that statement the appellant justified his continuous "no comment" replies to the investigating officers questions with an intention to reveal all in a statement to the Court. It is true that the appellant did make an unsworn statement to the assessors but provided no information as to the whereabouts of Mr Komaisuva nor as to what happened to the substantial funds drawn from his account over a short period of time by the appellant. For example the appellant withdrew a total of $15230 by means of 6 separate withdrawals all on the 4th December 1989 the day he finished working at the Bank.

Mr Jonetani Tukana Komaisuva

Exhibit 9 is the specimen signature card presented to the Bank by the appellant and alleged to have been signed by Mr Komaisuva. His occupation on the card is described as a Primary School Teacher; and his address is given as C/- Ratu Sauvoli Memorial Sch. Nabudrau Noco Rewa P O Box 385 Nausori.

On this card there is a space for the specimen signature of the account holder. It is signed J.T. Komaisuva.

Now the appellant admitted in his unsworn statement to the assessors that he opened this account because he trusted Mr Komaisuva. However not only did he open the account but he completed all the details required on Exhibit 9 even it would seem to the specimen signature of Mr Komaisuva. At least a cursory examination of the specimen signature card and the appellant's letter of resignation Exhibit 5 clearly identify the many similarities in the hand writing on the two exhibits.

This question of the verification of hand writing by an expert witness was raised in the course of the trial. The appellant himself referred to the absence of an expert opinion on the hand writing which he challenged. The similarities in our opinion are such that the assessors were well able to make decisions without the assistance of hand writing experts.

In the course of arranging the large number of withdrawals from the Bank account over a short period of time the appellant referred on a number of occasions to Mr Komaisuva being his uncle. But Komaisuva has never been located either by the Police or by the appellant - and this despite a period of more than 4 years from the time of the appellants arrest to the time of his trial.

The Mirror Accounts

The Appellant alleges with some justification that the transactions from the 3 English Banks disclosed on the computer print outs have not been disproved in any way. He claims that all payments recorded as being derived from the 3 English Banks are shown on Westpac Suva records. He believes that the production of the records of the English Banks would confirm those payments were in fact made by way of transfer from those Banks to the Suva account of Mr Komaisuva. He says that his demands for those records to be produced have been refused and as a consequence his rights to a fair trial have been seriously prejudiced.

The accountant to the Bank in providing detailed evidence of the system employed by the Bank in dealing with foreign exchange transactions did not explain how the credits from the 3 London Banks were actually recorded, on the compute print outs viz. Exhibit 1.

There is no question that the appellant withdrew the funds from the Komaisuva account. He admits that. But what he says is that he arranged those drawings from a credit account of funds from England to which Mr Komaisuva was entitled. If that is so the question he in effect poses is - If the prosecution has failed to establish that those 3 English Banks did not transmit those funds to Westpac in Suva and which are recorded in Exhibit 1 then is such failure fatal to the prosecution case?

Conclusion

In our opinion there is substance in that submission. It is the duty and responsibility of the prosecution to establish beyond doubt the facts and circumstances they allege to support the allegations of obtaining money by false pretences. In this case we are of the opinion that the prosecution has not reached the threshold of satisfaction required. More importantly however the trial judge failed to direct the assessors on this fundamental issue. That failure in our opinion is fatal.

Accordingly we allow the appeal and quash the conviction and the sentence imposed.

(Mr Justice Gordon Ward)
Judge of Appeal

(Mr Justice Douglas Dillon)
Judge of Appeal

(Mr Justice Richard Savage)
Judge of Appeal