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State v Lawedrau [1994] FJHC 88; HAU0048d.1994s (2 August 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)
(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. HAA0048D OF 1994S

Between

STATE
Appellant

And

RUSIATE VULI LAWEDRAU
Respondent

Counsel: Miss Elizabeth Rice for Appellant
Mr. Raza for Respondent

Hearing: 2nd August 1994
Decision: 2nd August 1994

ORAL DECISION OF PAIN J.

This is an appeal by the Director of Public Prosecutions against the acquittal of the Defendant on the 24th of November, 1993 following a trial in the Magistrates Court. The Learned Magistrate acquitted the Defendant on a charge of Fraudulent Conversion, the particulars alleged being that

"between the 27th day of September 1990 and the 10th day of September 1992 at Suva in the Central Division he fraudulently converted to his own use and benefit certain property that is to say $9,456.52 entrusted to him by Alex Haskin for the Defendant to deposit in the account of Seventh Day Adventist Church".

Counsel for the Appellant relies on the submissions contained in the petition which have been amplified and added to by oral submission. It is said that the evidence shows that the Defendant received the sum of $15,000.00. It is alleged that he accounted only for $5,543.48. This sum is calculated in accordance with the quotation for building materials produced by police witness 3 for a sum of $2,245.88, an account Exhibit 4 for four bags of cement costing $40.60 produced by the same witness and two payments of $2,000.00 each made by the Defendant to the Seventh Day Adventist Church on the 20th of November 1991 and the 2nd of December 1992. Having allowed those payments a deduction of $743 is made for a sum that police witness 3 said that she paid to the Defendant. When that net balance of $5,543.48 is deducted from the original payment of $15,000 a balance of $9,456.52 remains. This is the sum mentioned in the charge that the Defendant is alleged to have converted to his own use.

The problem with this reasoning is that, in a sense, it inverts the onus of proof. The prosecution alleges that the Defendant has not paid the whole $15,000 for the designated purposes. It then relies on accounts and quotations supplied by the Defendant to police witness 3. This is certainly evidence of what the Defendant supplied but it is not proof that it covers all the work done or all the expenditure incurred.

The allegation is that he received this money namely $15,000 for the purpose of paying for the completion of the building of the church. When an allegation is made that he converted part of that sum to his own use the issue is what if any sum has been proved to have been so converted. It is necessary for the prosecution to prove that the money has been converted to his own use in the sense of being expended by him for his own purposes. There must be proof that a specific part was used for his own purposes and not for the building of the church. The proper proof of such an allegation would normally require an analysis of the Defendant's bank account after the sum of $l5,000 was deposited into it. A proper analysis would show how the funds were expended. Counsel for the Defendant suggests that there needs to be a proper valuation of the work that has been done on the church. That is a possible way of proof, although I have some reservation about that as establishing beyond reasonable doubt the actual sum expended by the Defendant on church work. In this case there has been no evidence adduced of any expenditure made by the Defendant from the account into which the sum was deposited. Such evidence could of course be conclusive if for instance the whole funds were expended within a short period during which no or little work was done on the church building. In this case therefore the prosecution has not proved what actually happened to the money or what amount was expended on the church.

The evidence adduced by the prosecution was intended to establish how much had been spent by the Defendant. This evidence is inconclusive. Police Witness 1 Mr. Hasken concedes that improvements had been done. The side room had been put on and the toilet partially completed when he viewed the work in August 1991. Police Witness 2 Mr. Ferris also confirmed that some work had been done for example block work for the toilet. Police witness 3 Mr. Vunivaka, or it may be Mrs. Vunivaka, the Treasurer gave evidence of documents received from the Defendant. Her evidence was that only $2,000 worth of work had been done on the extension. However that evidence was clearly hearsay having been a figure told to her by a carpenter. Although it was denied by her, her police statement contained a different figure. Under cross examination she was unable to give precise details of what work had been done and acknowledged that other work was done that must have been paid for by the Defendant although she had no details of it. Police witness 4 merely confirmed the payment of the funds into the Defendant's account. Significantly she did say that the account had a credit balance throughout the whole period. Police witness 5 Mr. Bendiloa the treasurer of the Seventh Day Adventist Church gave evidence of the accused paying three cheques for $2,000 to the church over a period of almost two years. The prosecution relies upon this as some admission by the defendant that this sum had been converted and was being repaid by him. He gave a different explanation in his unsworn statement. Finally there is the caution statement of the accused. In this statement he says that $15,000 was paid to his account because the church account was in overdraft. This evidence is confirmed to some extent by the evidence of the police witness 1, namely that mention was made of the church account being in overdraft. It is clear from the caution statement that problems arose and on the 4th of October 1991 the Defendant had a meeting with others of the church. In his statement he said that he gave an explanation and there was confession and reconciliation. He said a few were unhappy and he decided to hand over to the church the balance of the money he had namely $2,000.00. He also said that he was to pay the church building debt owed to the headquarters office at Lami and to give the church at Veirapa $2,000 for them to complete the work to be done. He also said that the church had its own machinery for dealing with this type of problem. He had been censured that is stripped of church duties for a period. He said that now they were pursuing the matter to a court of law and that no person should be punished twice. Certainly this caution statement does indicate some sort of wrong doing by the defendant. However it is certainly not an unequivocal confession to conversion of the amount alleged. It could be an indication that $8,000 of Mr. Hasken's money was still unaccounted for and as immediate payment was not made it seems that the original funds may already have been expended. The further evidence available was the unsworn statement of the defendant. The use of the word evidence is not appropriate because an unsworn statement is not evidence in the sense of other evidence given by the witnesses. In that unsworn statement the defendant said that he did not spend a cent for his own use and he detailed the items on which he had spent the $15,000. Even if he had not made that unsworn statement the onus was still on the prosecution to prove that he spent a particular portion of this money for his own purposes.

The Learned Magistrate in his decision said that he had considered all the facts and evidence before him. He found that "there are many questions which remained unanswered. There are too many doubts in the case". He then gave illustrations of these. He then said "it is apparent that certain work completed by the accused has not been taken into account by the prosecution. It is clear from facts that work in excess of $5,543.48 has been performed by the accused". I would not go so far as to say that those matters are clear from the evidence but on my reading of it the possibilities have certainly not been excluded.

In all the circumstances I cannot criticise the findings of the Magistrate nor are there sufficient grounds to disturb those findings. The onus was on the prosecution to prove beyond reasonable doubt that the defendant used the sum of $9,456.52 for his own purposes. I agree with the Magistrate that this has not been proved to the standard required. If this was a civil action for recovery of monies it could be said that, on the probabilities, all this money was not spent on the church building. But this is a criminal prosecution with no onus on the defendant and a conversion of funds by him has not been proved beyond reasonable doubt.

Having come to this conclusion I do not need to consider the further matter of whether or not the appropriate charge has been laid and whether there is evidence to establish that particular charge. The charge is that $9,456.52 was entrusted to him to deposit in the account of the Seventh Day Adventist church. What Mr. Haskins said in evidence was that he trusted the accused so he sent $15,000 by telex "to complete the church". If this particular subsection of Section 279 is appropriate the wording of the charge should be that the accused having received $15,000 on account of the Seventh Day Adventist Church fraudulently converted $9,456.52 thereof to his own use. However, the more appropriate charge may well have been under subsection 1(c)(i) of Section 279 of the Penal Code namely that the Defendant having been entrusted with $l5,000 in order to apply it for the completion of the church fraudulently converted a certain part thereof to his own use. As I read the evidence the money was sent by Mr. Haskins for a particular purpose, not for deposit to a particular account. However that matter has not been argued and I make no final decision on it.

For the reasons given earlier relating to the evidence and the findings of the Magistrate, the appeal is dismissed.

MR. JUSTICE D.B. PAIN

HAU0048D.94S