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Yavala v The State [1997] FJHC 196; HAA0040j.96b (1 January 1997)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0040J.96B

Between:

ENESI YAVALA
Appellant

and

STATE
Respondent

Appellant in Person
Ms. L. Laveti Counsel for Respondent

JUDGMENT

On 14 May 1996 before the Labasa Magistrate's Court appellant was convicted after trial of the offence of fraudulent conversion contrary to section 279(1)(c)(ii) of the Penal Code and was sentenced to 18 months' imprisonment suspended for 2 years and fined $950 in default 9 months' imprisonment.

The particulars of the offence were that between 31st October 1990 and 21st November 1990 at Labasa having received a sum of $10,000, the property of Frank Robert Richards fraudulently converted the said $10,000 to his own use and benefit.

Appellant is appealing against his conviction. The basic facts which the learned Magistrate appeared to have accepted are set out in the judgment as follows:

"According to Moreen Sovia Richards the wife of Richard then had been an agreement between them and the accused who wished to build a house for his father. The accused had said that if they contribute a sum of $10,000 they also could come and stay there. She and her husband discussed the matter and decided to contribute the sum of $10,000.

Around 29/10/1990 she went to her bank in Australia and sent the sum of $10,000.00 to the accused's wife Teresia Yavala by telex.

The accused was to contribute a sum of $40,000.00 and at the time the accused was working with some logging company. His wife had confirmed that this money had been received.

Later she came to him that nothing had been done by the accused to build the house. Before Christmas that year the accused had sent a fax requesting for another $6,000.00 but it was not sent.

Although the accused promised to return the money he had not done so.

Under cross-examination this witness stated that they had wanted to have a holiday house towards the cost of which they contributed $10,000.00.

According to Frank William Richards he had known the accused's father Ratu Selosi for about four years. In 1990 he had a discussion with Ratu Selosi to build a house on Selosi's land in Taveuni with the approval of the Mataqali.

The accused rang him up and said that he could build the house for $10,000.00 and he agreed. It was to be built by Hortwell Ltd. in Suva and he got quotation from them.

He sent $10,000.00 to the accused's wife bank account in Labasa."

It is not disputed that the money was entrusted to the appellant as complainant's contribution towards the building of a house in Taveuni which complainant, a friend of appellant's parents would be using under an arrangement when in Fiji. The house was never built and it appears the money has been used by the appellant for his own purposes.

The prosecution case was that appellant had fraudulently converted the money to his own use and benefit.

The defence case was that this was a contractual transaction which through no fault of the appellant had failed. The result of this failure was to give rise to a debt due from appellant to complainant and was recoverable by way of civil action. This action has already been pursued resulting in a judgment for a sum of $14,000 being obtained and entered in favour of complainant. In these circumstances it was submitted that the learned magistrate was without jurisdiction in purporting to deal with the matter as a criminal offence.

From the evidence it is clear that the money was entrusted to the appellant by the complainant for a specific purpose. That purpose having failed the appellant was clearly under an obligation by virtue of his fiduciary position in relation to the complainant to hold the money as trustee for the complainant. It is obvious, in my view that appellant had chosen not to honour that obligation. As a result the clear and only logical inference to be drawn from these facts is that the appellant had applied the money to his own use and benefit with intent to defraud the complainant. In other words on the facts as found by the learned Magistrate appellant fraudulently misappropriated the money in question.

In these circumstances there is no basis for holding that the conviction entered against appellant in this case was unreasonable having regard to the whole of the evidence.

In the result the appeal is dismissed.

Chief Justice

Labasa
January, 1997

HAA0040J.96B