IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.HAA0092 OF 1998L

Between:

KELEPI JEREMAIA BABA
Appellant

And:

THE STATE
Respondent

Counsel: A S Patel for the Appellant
Ms M Lum for the Respondent

Date of Decision: 6 October 2000

JUDGMENT

Kelepi Jeremaia Baba was convicted by the learned Magistrate at Nadi on 24 November 1997 of fraudulent conversion contrary to section 279(1)(c)(i) of the Penal Code Cap. 17 and sentenced on 5 December 1997 to two years imprisonment. Between 30 August 1991 and 2 March 1992 at Lautoka in the western division the appellant fraudulently converted to his own use and benefit certain property being some $2500.00 entrusted to him by Arun Kumar to pay for construction of waterpipes at Malewai, Votualevu.

The appellant appeals against the said conviction and sentence on the following grounds:

(i)	that the learned Trial Magistrate erred -

a)	in not directing himself as to the standard of proof required on the part of the prosecution;

b)	in admitting as evidence on behalf of the prosecution, Exhibit 2 being photocopy of alleged list of members of the Malawai community claimed to have contributed through the subject of the charge against the appellant;

c)	in admitting as evidence on behalf of the prosecution, Exhibit 3 being an invoice alleged to have been raised by the contractors T F Jan Bulldozing, and regarded by PW4 Arun Kumar and PW5 Raj Kumar as receipt for the money the subject of the charge against the appellant.

d)	in not fully and adequately evaluating the evidence of PW1 Suren Chand and consider the contradictions and inconsistencies of his evidence at the trial;

e)	in not fully and adequately evaluating the evidence of PW4 Arun Kumar and consider the contradictions and inconsistencies in his evidence at the trial;

f)	in not fully and adequately evaluating the evidence of PW5 Raj Kumar and consider the contradictions and inconsistencies in his evidence at the trial.

(ii) 	that the learned Trial Magistrate erred in fact and law in giving any and undue weight to the evidence of PW5 Lenaiasi Vaka Tora.

(iii) 	that the learned Trial Magistrate erred in fact and law in not giving any weight to the appellant’s given evidence.

(iv) 	That the learned Trial Magistrate upon proper and full evaluation of all of the evidence ought to have held that the prosecution had __________ to prove the alleged offence on the part of the appellant. Alternatively, the learned Trial Magistrate upon full and proper evaluation of the evidence ought to have given the appellant the benefit of the doubt and that the judgment is unreasonable and cannot be supported having regard to the evidence.

(v) 	That the sentence ________________ on the appellant is ______________ harsh and excessive in all the circumstances and money in principle.

The first ground of appeal relates to aspects of the evidence that thelearned Magistrate relied upon to find the charge against the appellant proved beyond a reasonable doubt. Exhibit P3 was tendered by the prosecution as given by the appellant to PW4 in return for the monies he was allegedly given. In the court’s respectful opinion it ought to have been disregarded for several reasons. First, the document was an invoice made out to the Votualevu Water Supply Committee dated 30 August 1991. It is common ground that as at that date no work had started at all on the digging of trenches and laying of water pipes. Second at the time, the document was given to the prosecution witnesses present with the appellant, neither actually checked it to say into certainty that this was the document received. Third, it is the court’s respectful opinion that the maker of the ________________ one R Narayan ought to have been called. This was a crucial piece of evidence in the prosecution case. Bearing in mind the standard of proof it had to discharge at all times, the court finds that the circumstances it has adverted to were sufficient to raise reasonable doubt about the circumstances in which it was received by those concerned.

The court also has some misgivings about Exhibit P2 being the photocopy of the alleged list of members _______________ that were claimed to have contributed moneys the subject of the charge against the appellant. It has no argument with the authorities that allow the admission of photocopies under certain circumstances. The concern in the present situation must be PW1's assertion that PW4 placed a tick against each of the contributor’s names. The photocopy has no such tick. Therefore there must be serious doubt that it was an exact copy of the original. In the court’s respectful opinion it ought to have been excluded on that basis and was thus improperly admitted.

As regards the evidence of PW4 and PW5 also allege that they give the appellant the $2500.00 in return for which he gave them Exhibit P3, section 279(1)(c)(ii) creates an offence where a person is "either solely or jointly received property in order for an account of any other person, fraudulently converts to his own use or benefit...the property or any part thereof property or part thereof or any proceeds thereof;...." Exhibit P3 suggests that the appellant received the monies on behalf of T F Jan. There is no evidence to suggest he did so. As far as PW4 and PW5 were concerned they were handing him the funds for provision of a water supply. The charge in the court’s respectful opinion is not made out.

The appeal on the basis of the failure of the learned Magistrate to direct himself on the appropriate standard of proof particularly in relation to the admission of Exhibit P2 and P3 and the elements of the offence under section 279 (1)(c)(ii) of the code is accordingly allowed and the conviction of the appellant quashed. There is consequently no need to consider the further grounds of appeal.

Joni Madraiwiwi
PUISNE JUDGE

At Suva
6 October 2000