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Public Prosecutor v Nato [1988] VULawRp 19; [1980-1994] Van LR 319 (27 April 1988)

[1980-1994] Van LR 319

IN THE SENIOR MAGISTRATES COURT
FOR C.D.1 & SOUTH HELD AT VILA

CRIMINAL JURISDICTION

Criminal Case No. 304 of 1988

THE PUBLIC PROSECUTOR

- v -

DANIEL NATO

Coram: P. Dean, Magistrate

Counsel: Mr Dickinson, Public Prosecutor
Mr Rissen, Public Solicitor

JUDGMENT

[CRIMINAL LAW - STATUTES - interpretation of "misappropriation"]

In August 1987 a charge of misappropriation was laid against the defendant, DANIEL NATO. The particulars of the charge alleged that:-

DANIEL NATO sometime between 19th June, 1986, and 17th July, 1987, misappropriated the sum of 35,687 VATU, the property of the Government of Vanuatu.

Section 125(b) of the Penal Code Act provides:

"No person shall cause loss to another - (b) Misappropriation.
Penalty : Imprisonment for twelve years."

Section 123 of the Penal Code Act provides:

"A person commits misappropriation of property who destroys, wastes, or converts any property capable of being taken which has been entrusted to him for custody, return, accounting or any particular manner of dealing (not being a loan of money or of monies of consumption)."

The Public Prosecutor tendered a statement of agreed facts dated 19th April, 1988; he tendered by consent a statement made by the defendant on 17th July, 1987, and he called evidence from Mr Keith Andrew Mala, the Secretary of the Malekula Local Government Council.

The facts agreed in the Statement of Agreed Facts were as follows:-

(1) In June 1986, the defendant went to a training workshop for Government Officers in the Cook Islands.
(2) He was accompanied on the trip by Keith Mala, Secretery of Malekula Local Government Council.
(3) To cover expenses of both persons on the course an accountable imprest was applied for by the Defendant of 80,000 Vatu, as shown of Exhibit "A" on 10th June, 1986, which he undertook to retire and account for by 1st June, 1986.
(4) Each participant had 40,000 Vatu, though it was at all times the Defendant's responsibility to account for the whole of the money.
(5) The defendant failed to comply with the Government's requirement that the imprest be retired. The defendant was warned of his responsibilities by a Notice of The Public Service Commission dated 21st October, 1986, (Exhibit "B").
(6) The defendant failed to respond to the Notice and was suspended from 1st January, 1987.
(7) On 14th April, 1987, the defendant wrote to the Accountant General enclosing receipts for 46,318 Vatu and promising that he and Mr Mala would account for or return the balance - 33,682 Vatu - within two weeks.
(8) The allowable expenditure in fact amounted to only 44,313 Vatu leaving a balance due of 35,687 Vatu.
(9) As at 2/11/87 no monies had been repaid and no accounting made for the 80,000 Vatu other than the submission of receipts mentioned at paragraph 7 above, until on 26th February, 1988, the amount of 35,665 Vatu was paid to the Accountant General in retirement of the imprest.
(10) Keith Mala has accounted to the defendant for his 40,000 Vatu by giving to him the cash and receipts at the beginning of 1987.
(11) Exhibit "C" is a copy of Public Service Instruction No. 8 of 1985.

"The Exhibit "A" referred to was a standard form, Republic of Vanuatu Application for Accountable Imprest Advance. It was addressed to the Accountant General and dated 10/6/86.

Paragraph 1 stated, "I hereby apply for an accountable advance of 80,000 Vatu to be issued on 10/6/86 for the purpose of Training Workshop on Policies and Strategies for Government Officers serving outer-island Communities, 12 - 19 June, 1986, Cook Island." In paragraph 2 the defendant undertook "to submit an accounting of my expenses with supporting vouchers within ten days of the completion of the tour, failing which I agree to the amount of the imprest being deducted from my salary."

The Public Prosecutor argues that given the agreed facts it is established that the defendant's behaviour amounts to the offence of misappropriation because, he says whatever the defendant did with the 35,687 Vatu after the 1/7/86 was an unauthorised use of the money.

The Public Prosecutor submitted that the imprest advanced to the defendant was not a loan, as such, rather it was money that the defendant had custody of as an agent, and for which he had to account. It was, so the Public Prosecutor argued, made available to the defendant as an amount of purchasing power - a credit available to him for a particular manner of dealing, and so when the defendant failed to appropriate the money to the terms on which he received the imprest he misappropriated it.

The Public Prosecutor submitted that the defendant was guilty as charged even if he only failed to repay the money he was in fact holding but he said this case goes a stage further as the defendant had admitted to the Police that he had misused the money.

Although it is not clear on the evidence exactly what expenses were to be covered by the accountable imprest that the defendant received on 10/6/86 it is clear that, generally, those expenses related to the course he attended in the Cook Islands.

Mr Rissen the Public Solicitor agues that the money received by the defendant was an advance or a mere loan. He submits that dishonesty is not an element of the offence and stresses that paragraph 2 of the form "Application for Accountable Imprest Advance" and paragraph 6 of Exhibit "C" (The copy of the Public Service Instruction No. 8 of 1985) both make it clear that the nature of the transaction is one of a loan that is to be repaid by deduction from salary if necessary. Mr Rissen submits that the defendant may be able to avoid paying back certain parts of the loan by producing receipts but he owes the Government the amount of 80,000 Vatu and the Government makes arrangements for its repayment. Mr Rissen submitted that the whole of the rest of the evidence is irrelevant.

I accept Mr Rissen's submission that the imprest advance could all have been spent, if the defendant chose, on items that he was entitled to, or that at the time he received the money he was not responsible to pay back any of it - if it was spent on legitimate items, but to say that is to look at only part of the situation.

Mr Rissen goes on to submit that the whole tenor of the transaction is that of a debt, and that the defendants motivation in not repaying the money he was ultimately obliged to repay until February of 1988 was quite irrelevant, as was the precise time when the money was paid back, and his suspension by the Public Service Commission.

Mr Rissen submits that the use of the Bislama word "misusem" by the defendant in his statement to the Police is a loose use of the word and that effectively the Court should not pay too much attention to the use of that word by the defendant. Mr Rissen says that whatever the defendant says about using or misusing is not relevant in these proceedings as the defendant could not understand the technicalities of this highly technical offence. It is not he says a confession of misappropriation. The transaction he says was a loan for consumption to be recovered in a certain way.

In my view the accountable imprest advance that the defendant received from the Accountant General's Department on the 10th June, 1986, was property that he was being entrusted with for a particular manner of dealing, accounting and, if appropriate, return. The particular manner of dealing was expenditure on what Mr Dickinson referred to as "legitimate expenses".

Once he had received the imprest it was the defendant's duty to use it only in that particular manner, then to account for his expenses with supporting vouchers, and to return the balance if any that he was holding to the Accountant General. His prime obligation was not to use government monies for private purposes.

It is clear from his statement to the Police on the 17th July, 1987, the defendant did use all the money he received and that he used some of the money, 35,687 Vatu, for his own private purpose. Although both Mr Dickinson and Mr Rissen agreed that the defendant had used the Bislama word "misusem" in his statement on looking at the statement the defendant wrote down "So ol money ia, mi wandem talem stret long yufala se, ol money mi bin mi usum finis". It is not clear that he did use the word "misuse".

On the view I take of the transaction it is not important whether or not the defendant characterised what he did with the money as a "misuse" or mere use as on all the evidence it is clear that the use of at least part of the money was a use for the defendants own private purpose.

The defendant here admitted in his statement that he used some of the money for private purposes. It is not clear exactly when that was done and so the Public Prosecutor has charged the offences as occurring between the date the moneys should have been accounted for, and the date of the defendant's statement. By using the money for private purposes the defendant converted the property that had been entrusted to him for a particular manner of dealing.

As the Public Solicitor submitted, 10 days after the defendant's tour had been completed the Government could have sued him for the return of the imprest and the Government had a right to deduct any imprest which remained outstanding for more than 6 months from the imprest holder's salary - but the existence of those rights in the Government do not mean that the transaction between the Government and the defendant was just a loan. In my view Mr Dickinson is correct in his submission that the imprest money always belonged to the Government. Again although Mr Rissen submitted that it was rigid and unjust to interpret Sections 123 and 125 of the Penal Code Act to necessitate that imprest money be kept separate and apart from a touring imprest holders own personal money it may well be necessary to do just that to make sure that the requirements of the statute are met. It is after all no great hardship to keep imprest money in a separate envelope, into which the appropriate vouchers and dockets can be put as the imprest money is spent on legitimate expenses.

Even though an imprest holder may pay the imprest he receives into his own cheque account, as a matter of convenience, he still holds that imprest on trust for Government purposes. He may only use it to cover legitimate travelling expenses. If he uses it for his own private purposes then he has breached that trust and converted the imprest.

On all the evidence in this case I am satisfied beyond reasonable doubt that the defendant misappropriated the sum of 35,687 Vatu and I find him guilty.

Dated at Port Vila this 27th April, 1988.

PETER DEAN
MAGISTRATE