In the Supreme Court of Tonga
Criminal Jurisdiction
Nuku'alofa Registry

CR 69 of 2012

Rex

v

Taufa Talia

BEFORE THE HON. JUSTICE CATO
 Mr Sisifa for the Crown
Mr Niu for the accused

Ruling

[1]	The accused was indicted of four counts of fraudulent conversion of property over various periods being count 1, between the months of June and July 2011, $22,441.75; count 2, between the months of August and September 2011, 433,489.15; Count 3, between the months of October and November 2011; $26,716.90; count 4, between December 2011, and February 2012; $18,609.80. The counts were all said to arise whilst the accused was employed by Melie Mei Langi Limited. The total amount involved was $99, 257.60. 

[2]	The Crown, at the outset of the trial, sought to amend the indictment to alleged fraudulent conversion under s 162(b) of the Criminal Offences Act rather than s 158 being the offence of embezzlement. Plainly, there was an error in the section cited in the indictment in relation to counts 1-4 and I allow this amendment. There can be no prejudice to the accused. 

[3]	A substantial objection was made to the indictment by Mr. Niu. He contended that under s 16O of the Criminal Offences Act, the Crown was precluded from proceeding as it had. He contended that counts 1- 4 involved many discrete acts of alleged fraudulent conversion. Mr. Sisifa indeed asserted that there were about 250 individual acts with an average conversion of about $396 with the lowest being $30 and the largest $6-700.00. Mr. Sisifa said that he had elected to break the period of alleged offending into four based on a general deficiency count in each period. Mr Niu contended this was wrong and the Crown should have indicted each count separately because the alleged wrongful acts of conversion could all be identified although they were numerous. He also said that it was under section 160 of the Act impermissible for the Crown to proceed to trial on more than five counts, and that by alleging general deficiency, the Crown was essentially avoiding the application of the provisions of section 160 of the Act. Shortly, to allow the Crown to proceed by way of four counts of a general deficiency would be to render the application of the Act nugatory. Section 160 was considered by Ford J in R v Tangata'iloa [2001] LR 44.

[4]	I did not proceed further with the trial but allowed counsel time to argue the issues more fully with authority in the afternoon considering my rulings overnight. The issue is important in criminal procedure because if Mr Niu were correct this would mean that proceeding to trial on only five counts involving very modest sums would not reflect the alleged seriousness of the offending in cases where there was a significant general deficit. It would involve the Crown having to proceed to trial on many more occasions. Mr. Niu contended, however, that this was the effect of two rules, the general principle that each acts of criminality should be alleged in discrete counts so as to avoid allegations of duplicity, and on the plain reading of s 160 which restricts the numbers of counts in trials of embezzlement, falsification of accounts or fraudulent conversion respectively. Mr. Niu also contended that whereas here, the Crown was able to particularize and establish the precise acts, numerous though they were, there was no room for any common law concept of general deficiency to apply. 

[5]	The issue is practically important in cases of this kind. Research in the adjournment revealed authority that supported the Crown's approach of pleading general deficiency in cases where there was a multiplicity of acts relating to a general deficiency. The relevant cases are R v Balls (1871) LR 1 CCR 328 considered and followed by Lynskey J in R v Lawson (1952) 36 CLR 80, and further approved by the Court of Criminal Appeal in a judgment given by Pearson J in R v Tomlin [1954] 2 All ER 273. Mr Sisifa also drew my attention to the judgment of Ward CJ who in R v Funaki [2005] Tonga LR 239 approved the concept of a general deficiency count where there were several acts of theft provided that the activity amounted to continuous offending over a period of time. He referred to the acts forming a single activity. In his view, if the offending could sensibly be viewed in this light "it will not be bad for duplicity, even if a number of distinct criminal acts are implied."

[6]	Mr Niu maintained that a general deficiency approach could not be taken where the acts relied upon by the Crown were apparent. However, there were 31 separate identifiable payments in R v Balls, as Pearson J pointed out at page 274 of Tomlin which would suggest that general deficiency should not be so restricted as Mr Niu suggests. Although in many cases of general deficiency it may not be able to isolate all of the wrongful acts, where there has been a continuum of similar unlawful offending or a similar modus operandi or pattern involving many acts generally involving small amounts, the approach of alleging a general deficiency should in my view be permitted. The Crown asserts that between June 2011 and February 2012, very many similar acts of fraudulent conversion of small sums constituted the offending.

[7]	The advantage of approaching the matter in this way is that the totality of alleged offending can be advanced, in one trial so long as there are no more than 5 counts of general deficiency whereas, if the approach contended for by Mr Niu is correct, the Crown case involving only five counts involving modest sums would present a wholly unrealistic picture. It would mean, as I have said, that the Crown would have to proceed with many more trials in order to reveal the true seriousness of the offending. In R v Tomlin, at page 275 Pearson J concluded his judgment by stating;

"We desire to make it plain in conclusion, agreeing therein with Lynskey J that, in the ordinary case, where it is possible to trace the individual items and to prove a conversion of individual property or money it is undesirable to include them all in a count alleging general deficiency. What we are not willing to do is to elevate a rule of practice, applicable to circumstances where it may be required to avoid injustice, into a rule of law applicable to circumstances where it will defeat justice."

[8]	Accordingly I rule that it was in this case appropriate for reason I have given for the Crown to proceed as it has done in relation to counts 1 to 4. That being the case, there being only four counts section 160 does not apply.

[9]	During the course of argument, I mentioned to Mr Sisifa that a fifth count alleging theft alleging of a global sum of $99, 257.60 should be pleased as an alternative and indeed broken down into four alternative counts as alternatives to counts 1-4. That seemed to reflect my reading of section 161 of the Criminal Offences Act which provides for theft as an alternative to embezzlement or fraudulent conversion. Mr Sisifa appeared to accede to this view, and accordingly, I give leave to amend the indictment in this way. There can be no prejudice to the accused.

DATED: 7 May 2013
J U D G E