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Public Prosecutor v Leo [2008] VUSC 54; Criminal Case 75, 76 & 78 of 2008 (11 July 2008)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Criminal Case No. 75, 76 & 78 of 2008

PUBLIC PROSECUTOR

-V-

SANDY LEO
JAMES WETIES
DANSTAN HILTON
NOEL TAMATA
MALON HOSPMANDER

Coram: Justice C.N. TUOHY

Date of Hearing: 17, 18, 19, 23, 24, 25, 26, 27, 30 June, 1, 2 & 3 July 2008
Date of Judgment: 11 July 2008

Counsel: Mrs. Tavoa for Public Prosecutor
Mr. Toa for Defendants (Leo & Weties)
Mr. Malcolm for Defendants (Hospmander, Hilton & Tamata)

ORAL JUDGMENT

1. This is the verdict on the trial of an information originally containing 19counts or charges. The counts are linked in that they all concern offences relating to Government cheques allegedly falsely altered by a man named Salendra Sen Sinha.
   
2. It is necessary to set out the procedural history of the case first. Following discovery by the authorities of the last forged cheque, the authorities investigated and found that a total of 7 Government cheques originally made out to a variety of different payees had been altered/forged. The police were tasked with investigating and they chose to investigate each cheque as a separate case probably because with this very large investigation they thought it was more manageable to deal with it cheque by cheque. However this has led to a lot of duplication in police statements, because many witnesses had information about more than one cheque. Not only was there more than one statement taken from many witnesses but also several of the suspects who are now defendants were involved in one way or another with several of the cheques particularly the defendants Weties, Leo and Hospmander. So several statements were taken from them relating to separate cheques. The chosen police method led to them being interviewed separately by the police in respect of each separate cheque they were involved in.
   
3. The police procedure was initially followed by the Public Prosecutor in the laying of charges. A separate information in respect of each forged cheque was laid in the Court charging all involved with that cheque. This process was undertaken despite the fact that several of the defendants were involved with two or more different cheques. So there was the prospect of 7 different trials. The Court queried that approach at the outset but the prosecutor was adamant that that is how they wished to proceed.
   
4. The Court commenced hearing the informations separately and completed three trials. However it became increasingly obvious that the separate approach was inappropriate and tended to create serious evidential problems. Apart from the unnecessary calling of the same witnesses on numerous occasions the problem was that in many respects the evidence in respect of one cheque was very relevant in relation to charges relating to another cheque including the statements of the accused. A statement about one cheque could very well be relevant in relation to the accused’s guilt or innocence in relation to another cheque.
   
5. It became clear that it was inefficient, artificial and in many respects, impracticable to try the informations separately. Therefore I directed that a new information should be filed containing all remaining counts in the existing separate informations and that has been done and it is the basis of this trial.
   
6. It contained initially 19 counts. Unfortunately the information was not carefully drafted despite the Public Prosecutor having several weeks to prepare it. It has had to be amended during the trial on several occasions and some counts have been withdrawn.
   
7. In relation to the combined information, counts 4, 10 and 11 were withdrawn or a nolle prosequi entered over the course of the trial or before it started. The remaining counts cover 4 cheques, numbers 2154172, 2154189, 2153702 and 2155258. Unfortunately the order of the counts in the information is not chronological despite the fact that looking at the evidence in a chronological way is essential to understanding it in my judgment. I therefore intend in this judgment to deal with the remaining 16 counts chronologically.
   
8. So the order in which I will deal with them will be this:
   
   1. Cheque 2153702, count 12 against Danstan Hilton, 13, 14, 15 and 16 all against James Weties.
   2. Cheque 2154189, count 6 against James Weties, count 7,8 and 9 all against Sandy Leo.
   3. Cheque 2154172, counts 1, 2, 3 and 5 all against Sandy Leo
   4. Cheque 2155258, count 17 against Noel Tamata and Malon Hospmander. Counts 18 and 19 against Sandy Leo.
      
9. Before turning to the evidence I remind myself of the basic principles of a criminal trial which have to apply to this case like all others. First, the onus of proving the charges is on the prosecution throughout the trial. The accused do not have to prove that they are innocent. They are entitled to give evidence and they all have done so, but that does not change the onus of proof, it remains on the prosecution from beginning to end of the trial. Secondly, there is the standard of proof. That is the level to which the charges have to be proven before the Court can find an accused guilty. That level is the one known to the criminal law of all the countries of the common law world and it is beyond reasonable doubt. That means that before the Court can convict an accused on a charge, the Court has to be sure of his guilt. The Court has to be satisfied from the evidence that he is guilty. If there is a reasonable doubt in the Court’s mind then the accused must be acquitted. If on the other hand the Court is sure of his guilt then it is the duty of the Court to convict. And that is the approach that this Court will always take.
   
10. The charges must be considered separately and the evidence in relation to each considered separately. On the other hand as I have mentioned evidence in relation to one cheque including the statements of accused relating to it are in some respects and on some occasions relevant to charges relating to other cheques. Also the statements of the accused outside the Court are evidence only against the person who made the statement. I think I have mentioned that during the trial and it is an important legal point. Strictly statements made to the Police are hearsay and normally statements made out of Court are not permitted into evidence. They are permitted into evidence as an exception against the hearsay rule when they are made by an accused against himself. But what an accused might say about another accused to the police is not evidence that the Court is entitled to look at in relation to the other accused person.
    
11. There are some other general issues that need to be mentioned before turning to the individual counts. First, it is part of the prosecution case that each of the four government cheques which are subject of this trial came into the hands of Salendra Sen Sinha an Indo-Fijian and he altered all four of them, in three of them by altering the name of the payee to either James Weties or Sandy Leo and altering the amount of all four of the cheques to increase it many times, and he altered them in a way that is not immediately obvious to the naked eye. He did that before giving the cheques to either James Weties or Sandy Leo to bank into their accounts.
    
12. Those propositions are not in dispute by any of the accused, all of them accept those propositions and no one disputed them. In any event I find on the evidence that that indeed happened in every case, that Salendra Sen Sinha dishonestly altered each of these four cheques before handing them to either James Weties or Sandy Leo to bank.
    
13. Salendra is not on trial, although he is the principal offender in respect of all of these cheques. The reason why he is not on trial became apparent in the evidence. It is because he fled to Fiji apparently on a yacht when he got wind of the fact that the series of forgeries he had carried out had been discovered.
    
14. The other general matter that needs to be mentioned relates to the essential elements that have to be proven in relation to the charges. I have defined what those essential elements are already in the judgments I have given in the separate trials I have heard in Criminal Case Nos. 70, 73, 74 and 77 of 2007. I do not want waste additional time repeating what I said in those cases about the essential elements of the charges in legal terms. The charges in legal terms in this case are the same as they were in those other cases and I adopt the definitions, the legal definitions, for the charges before the Court in the present case that I used in my judgment in Criminal Cases 70, 73, 74 and 77 of 2007.
    
15. I turn now to the individual charges. I mention first count 12 which was against Danstan Hilton. That was a charge of aiding Salendra to forge cheque 2153702 which was Mr. Hilton’s MP allocation cheque, originally for VT 500,000 and altered by Salendra to an amount of VT 3.950.000 and into the name of James Weties.
    
16. During the course of her closing submissions the Public Prosecutor requested that Mr. Hilton be acquitted on this charge for insufficient evidence and I agreed with the Public Prosecutor, there was insufficient to convict him and I acquitted him. I gave my reasons verbally at that time, they were not recorded and I take the opportunity now to get them on record.
    
17. The evidence relating to that cheque is that it was picked up from the Finance Department and delivered into the hands of Danstan Hilton in his office on 21st May 2007 and placed on his desk. Two days later on 23rd May, James Weties arrived at the bank and deposited that cheque which was now in the sum of VT 3.905.000 and made out into his name. He acknowledged that he was given the cheque by Salendra to bank. There was no evidence of how the cheque got from Danstan Hilton’s desk into the hands of Salendra.
    
18. Danstan Hilton gave evidence that he had done nothing with it after it was placed on his desk on the 21st May. There was also evidence that no complaint about the loss of the cheque was made to the police nor any request for a replacement of the cheque by the Finance Department before the forgery of the cheque came to light several weeks later following the 9th July and the 10th July when these matters came to light. So that was the evidence. As I say the Public Prosecutor said that was insufficient to convict and I fully agree with that so that is why Mr. Hilton was acquitted. There was no point in keeping him hanging until today.
    
19. The other counts relating this cheque, counts 13, 14, 15 & 16 are all against James Weties and they relate to the depositing of the forged cheque in his account, the series of withdrawals he made on this account on the same and succeeding days. Also for reasons which will appear I have considered at the same time the remaining count against James Weties, count 6, which relates to a later cheque which was deposited into Sandy Leo’s account and in fact was Sandy Leo’s cheque.
    
20. There is no dispute that James Weties admitted depositing the cheque into his account and making the withdrawals which were for large sums of money and which he says he gave to Salendra. The only issue in relation to these counts is whether it is proven that in making the deposit and the withdrawals James Weties was acting dishonestly.
    
21. He gave evidence that he was introduced to Salendra by a person called Kris who was an Indo-Fijian associated with Salendra. He said that Salendra told him that the Government had some money of his held at the Court House, that he had a claim against the Government. And Mr. Weties said Salendra asked him if he had a Bank account into which Salendra could deposit money. He said he would inform the Finance Department to put Weties’ name on the cheque, so that it could be paid into his account. He said that he believed Salendra was a man of education and he used the word wisdom and believed what he was told. He said that Salendra gave him this cheque for VT 3.905.000 on the 23rd May made out to James Weties and he banked it and on the same day withdrew VT 2 m, two days later another VT 1.5 m and on the 8th June, VT 430.000 which just about exhausted the deposit. He said he gave it all to Salendra. He said he was acting honestly, he believed there was nothing dishonest about the transactions.
    
22. He went on to say that on the 3rd July which was over a month later, he deposited a further cheque given to him by Salendra and made out into his name and this time for VT 7.5 m. This cheque was a subject of a separate trial in CRC 70 of 2007. He withdrew all the proceeds of that cheque virtually immediately. He acknowledged to the Court in this trial that in relation to that cheque he had told the teller, when questioned about the source of the monies as is required by Bank rules for a cheque this size, that the cheque for VT 7.5 m was monies due to him by the Government, due to him Weties by the Government for his service in the Vanuatu Mobile Force. This story was not truthful as he acknowledged. He said it was Salendra’s idea to tell this story. He said it was just a story for a form, (I think he said) and he believed that the money was actually Salendra’s.
    
23. Going back to the deposit and withdrawals of VT 3.95 m, he said that the amounts in the deposit and withdrawal slips were filled in by Salendra but that he signed the forms and looking at the forms, that appears to be correct evidence. It means that Salendra already had NBV bank forms outside with him. He said that Salendra was waiting outside the Bank for him, that he gave all the monies from the cheque to Salendra. It is not really however disputed that from the proceeds of the other cheque that I have mentioned the VT 7.5 m cheque, there was still about VT 440.000 in Mr. Weties account when the balloon went up (if I can use that phrase).
    
24. There is other evidence relevant to the charge against Mr. Weties. First, his statements. There is a hand written statement dated the 1st August, it is in Bislama. It is a statement made to a police officer. There have been voir-dires about all the statement and I gave rulings in relation to all of them and recorded my impressions of the ways in which the statements were taken. In my rulings on the voir-dires I considered that the statements were made voluntarily in legal terms and that they were admissible.
    
25. In this statement of the 1st August, Mr. Weties effectively made a full admission that he knew that cheque 2153702 was falsified. I read two sentences from the statements. It says
    

"I tru se long taem ia we mi wantem go cashem cheque ia, mi bin save gud se cheque ia I no blong mi, but mi go blong stil. Taem we mi kasem bank mi presentem cheque ia long counter olsem wan real cheque, but long taem ia mi bin save se hemi no wan tru cheque".

There is more but that really amounts to an admission that he knew the cheque was false and he knew he was acting dishonestly.

26. The other thing that that statement says is this, at the end of it:
    

"Mi wantem talem aot se follem cheque ia Salendra I bin givim mi smol mani blong installments kasem VT 1 m".

Mr. Weties’response in evidence in relation to that statement is that he did not say any of it. It was all made up by the police and he signed it simply because he was afraid, he signed what the police wanted him to sign and it was not his statement at all.

27. There was also a record of interview made a day before, the 31st July. There were a number of these records of interview where the police had prepared questions on a computer and they did one in respect of each cheque generally for each defendant and the police evidence was that they asked the questions, took down the answers after giving a caution to the defendants which was recorded in the statement and that after they had finished they read the statement, confirmed that the suspect agreed with it, printed it out, got him to sign it.
    
28. This record of interview relates to cheque 2154189 and that is the cheque in which Mr. Weties faces one charge, count 6 where he is charged with aiding Salendra to falsify that cheque on the 5th June 2007. So the interview relates to events which were a bit less than 2 weeks after the deposit of the VT 3.95 m cheque and after two of the withdrawals but before the last withdrawal on the 8th June, which is count 16.
    
29. I will read questions 14 to 24:
    

"Q 14: How nao yu gat connection wetem Sandie Leo follem cheue blong hem ia? (Number 2154189).

A: Long number 5th June 2007 follem connection blong mi wetem Cheque blong Sandie Leo number 2154189, mi remember se mifala I bin picimap Sandie Leo long Finance Department, long taem ia mi bin go wetem Carlo Taxi mo Salendra mo mifala I bin go pickimap Sandie Leo long finance Department after mifala I go long Water Front long office blong Chris Mitchez anchor house long wan ples blong photocopy.

Q 15: After long Anchor house yufala I bin go wea?

A: Mifala I out long Anchor house mifala I bin out I come long Microtech and mi no remember se who nao I bin mekem photocopy but mi wantem addemap long ples ia se long every ples blong photocopy mifala I mas mekem 10 copies blong cheque.

Q 16: Who save confirmem to se taem yufala I finish long Microtec yufala I bin go wea?

A: Taem we mifala I finish long Microtech mifala I bin kam long Snoopy mo mi bin go mekem 10 photocpies long check ia long snoopy.

Q 17: Long taem long ol walkabout blong yufala ia yu bin aware good se yufala I stap mekem plan blong mekem wan steal?

A: Yes

Q 18: Taem we yufala I finish long snoopy, yufala I bin go wea?

A: Mi taxi I bin droppem mi long Anchor in after olgeta three ia oli go long house blong Jacob HIVIRD.

Q 19: From wanem ano oli droppem yu?

A: Mi nomo mi wantem come out from mi wantem go long Bar.

Q 20: Tufala I bin mitim yu bagegen long after ia?

A: Hemi normal se mifala I stap meet long every afternoon.

Q 21: Salendra I bin givim any money long yu follem check ia?

A: Hemi no givim any money but hemi bin pem dring mo kaekae.

Q 22: Yu agree se yu bin assistim Salendra mo Sandie LEO blong defraudem government follem check number 2154189?

A: Yes

Q 23: Yu save tallem long mi se from wanem nao yu bin mekem 10 copies?

A: Mifala I bin mekem 10 copies blong mekem sure se ol copies we mifala I mekem I mas exact wetem original.

Q 24: Iu save confirm se Plan blong alterem ol checks ia ibin arrange fastaem before iu fala I bin go mit?

A: Yes Salendra hemi askem gud long Sandie about check ia before mo confirmem date blong hemi go cashem check mekem se mifala ibin kasem gud information long issue blo check."

30. He had said earlier that he had met Sandy Leo through drinking with Salendra. Mr. Weties said in evidence that all of this is a fabrication by the police officers. He did not say those things and he was never there at all that day. He explained the detail in the record of interview on the basis that the police already knew about this because of allegations of Sandy Leo that he, James Weties, was involved with making photocopies of cheque 2154189 on 5th June. This was a cheque which was originally made out to Sandy Leo for VT 280,000 and was changed to VT 980,000 by Salendra and was the second cheque forged by Salendra.
    
31. It is necessary in considering Mr. Weties’ evidence on this point to go back to when and what Sandy Leo told the police to judge his explanation. In that regard, it is necessary to go back to Sandy Leo’s first statement of 10th July 2007. This was the very first statement taken the very day when the police first learnt of this issue of cheque frauds. It was the day that the National Bank of Vanuatu staff took Sandy Leo to the police station having found out that the last cheque 2155258 was a forgery. And Sandy Leo gave this statement to Corporal Frazer Tambe who asked him to effectively tell him everything he knew.
    
32. The evidence of Frazer Tambe was that before the interview of Sandy Leo on 10th July, the police had interviewed no one else and knew nothing about how the cheques had been forged and knew nothing much more than that there had been forged cheques presented at the National Bank and they were Government cheques.
    
33. Sandy Leo said this about cheque 2154189, his own cheque, and again I will read it:
    

"Mi bin gat wan contract wetem olgeta long health department around long manis March/April blong renovatim part blong new office blong olgeta blong Ex- Ah Tong Motel long Vila. Long taem ia cost blong contract blong mi ia hemi VT 280,000. Samtaem before long Number 5 June 2007 Salendra I bin mitim mi no mi bin talem long hem about cheque blong mi after hemi bin talem long mi sipos mi save givim check ia long hem taem mi recevim check blong mi blong hemi makem blong mi gat fulap money. So long No 5/6/07 long morning around 9:30 hrs Salendra I bin ringim mi blong askem mi sipos mi bin karem cheque blong mi finish. Long taime ia mi bin stap long finance department blong collectem chequ blong mi Cheq #215419 we value blong cheque ia I kasem 280,000 VT. Salendra I bin kam tru long finance mo pickimap mi long taxi blong Carlo colour red and long time ia James Waites I stap inside long taxi. Taem mi go inside long taxi Salendra I bin askem mi blong mi nem cheque blong mi and bae hemi work long hem blong mi karem 2 million vatu. So mi bin follem olgeta three long taxi and mifala I go kasem waterfront we James I go makem wan photocopy long check blong mi. Mi no luk hem I makem but hemi talem long mi se James I makem copy long check blong mi. Afta long Waterfront mifala I ron I kam long Microtech mo James Waites I go back long Microtech mo makem wan mo photocopy after mifala I out I go long Snoopy. Taem mifala I go long Snoopy James I go inside long Snoopy mo makem wan mo photocopy. Long taim ia mi no save good se oli stap photocopy long wanem. Taem mifala I finis long Snoopy Salendra I askem mi sipos mi save any man I gat wan Lap top mo ol copies. Se mi bin tingbaot wan apu blong mi namely Jacob Marco we hemi stap live long Fresh Wota (1) kolosap long Vaikara Store. Taem mifala I kasem long Fresh Wota (1) long house blong Jacob mi bin talem long Jacob blong Salendra I wantem usum Laptop mo ol printer blong hem. Mi remember se Salendra I come out mo go luk Jacob while mi wetem Carlo, James I out long taxi mo come long town. Ino long time nating Salendra I ring mo talem se mifala Igo back. Taem we mifala I kasem long house blong Jacob and Salendra I come inside long Taxi and mifala I rong I come back long town. Taem mifala I come long taxi Salendra I givim back check blong mi and mi lukim we I gat VT 980,000 I stap long chequ blong mi. Taxi I bin kam dropem mi long foret blong NBV and olgeta I drove off I go and oli talem se bae oli go afta come back from me. Mi bin go inside long Bank after mi karemaot cheque ia mo putum long counter. One long ol teller long Bank I servem mi. Long taem ia mi bin withdrawem out VT 400,000 and ol money ia mi karem I go long door mo wait long taxi I come back. I no long time nating Salendra wetem ol group blong taxi oli die I come back mo karem mi and mi givim every money ia long Salendra."

34. It is important to compare that with the record of interview of James Weties on 31st July. There is no doubt that the police knew of Sandy Leo’s statement of 10th July at that time, and no doubt also that they prepared questions before their interview of Mr. Weties on 31st July. All the questions contained nothing more than Sandy Leo’s statement told them. The questions were quite short. If you remember the questions and answers I read, the detail was in the answers not in the questions. The questions were open questions in large part, at least about the detailed facts, for example "How nao yu gat connection wetem Sandy Leo follem cheque blong hem ia 2154189"? And it is the answer which contains the story about going to the Waterfront, Anchor house, the photocopying. And next question is "Afta long Anchor house, yufala I bin go wea"? And it is the answer which contains going to Microtech and making not one photocopy as Sandy Leo’s statement told the police but 10 photocopies. The 10 photocopies did not come from the questions, there is no mention of that in the questions, there is no mention of that in Sandy Leo’s statement of 10th July, 3 weeks earlier. The first time the 10 photocopies was mentioned is in the answer to the question by James Weties.
    
35. Sandy Leo’s statement of 10th July is not evidence against James Weties, as I have already explained, but James Weties’ own statement is evidence against him. I am satisfied that it is not a fabrication of the police. My view of the statement is recorded in the voir-dire decision. I simply do not believe that this is a total fabrication as Mr. Weties said and that he signed such a detailed incriminating statement which is false, according to him. In the case of the statement, the information about 10 photocopies could only have come from Mr. Weties. It is highly incriminatory evidence. It shows that he knew the cheque was to be altered by Salendra through forgery, that is why 10 photocopies were being made to make sure that the results was the same, looked the same as the original. Obviously if that statement is accepted and I do accept it, it convicts him on count 6.
    
36. In my view it is also relevant when considering the earlier counts 13, 14 and 15 which happened before, and 16 which happened on 8th June, 3 days later. It is relevant to judging whether he was truly acting honestly, as he says, earlier. And of course it is relevant to the credibility of his evidence as a whole, as are the events later again of 3rd July when depositing the VT 7.5 m into his account.
    
37. I find that Mr. Weties’ evidence about what he told the police is untruthful. And I find that he indeed did on 5th June, what his record of interview said he did, made 10 photocopies of Sandy Leo’s cheque for Salendra at more than 1 photocopying place and that the only reason he did that could only have been to assist Salendra in forging that cheque, the cheque of Sandy Leo. But two things follow. It follows then that his evidence generally cannot be relied upon as truthful and I give no weight to his evidence that he was acting honestly. Nevertheless it still has to be proven.
    
38. But it also tells us that he knew on 5th June that Sandy Leo’s cheque was to be altered by Salendra. The only prior cheque Salendra had altered is the one which James Weties banked on 23rd May and which is the subject of counts 13, 14 15 and 16. I conclude therefore that on 5th June, he knew that earlier cheque had been forged. It follows also in my view that the only reasonable inference on all the evidence is that he was well aware when he banked that cheque on 23rd May, that it was a forged cheque. In my view he knew it for these reasons.
    
39. First, he knew it was in his name and he knew it was VT 3.95 m. Second, he knew he wasn’t entitled to a government cheque for that amount. Thirdly, the story of Salendra telling him that he needed his account for honest reasons and got the Finance Department to put James Weties’ name on the cheque for that reason, I do not accept that Mr. Weties would believe such a story. Mr. Weties has spent 11 years in the Vanuatu Mobile Force, he is plainly a far more educated and sophisticated man than Sandy Leo, for example. He has worked as security at the Reserve Bank according to his evidence. He told a lie later, when he was banking the VT 7.5 m cheque, he told a lie to the bank as to the reason that later cheque was in his name. That indicates to me that he knew, he had knowledge of the falsity of that cheque. He would be well aware that if Salendra really had a rightful claim for money from the Government, there were a number of ways it could be paid to Salendra, other than having to use someone else’s cheque account. He could have obtained cash at the Reserve Bank. And I have no doubt even that Salendra would have been able to negotiate a Vanuatu Government Reserve Bank cheque made out to him in some way through the banking system without using someone else’s account with that someone else’s name on the cheque. And I am sure that James Weties is not so simple that he did not also know that and that he did not realise that this first cheque was a forgery.
    
40. Finally his making of the photocopies on 5th June, which I find as a fact he did, is clear evidence that he knew then that Salendra was a cheque forger. And it is fair reasonable inference he knew that because he knew that the cheque he had banked twelve days or so previously had been forged by Salendra.
    
41. Therefore I am satisfied that Mr. Weties was well aware that cheque 2153702 had been forged by Salendra. He knew that when he banked it and he knew that when he made the withdrawals. And I find that he is guilty of count 13, 14, 15 and 16. I am also satisfied that in making the photocopies of Sandy Leo’s cheque 2154189 on 5th June, he knowingly provided assistance to Salendra to forge that cheque and he is guilty of count 6.
    
42. However I do accept the other part of his record of interview, that he got out before the others went to Hivird’s house, where the forgery was evidently carried out and I accept what he says that he received nothing from that Sandy Leo cheque.
    
43. That point of all this, the fact that those things are included in the record of interview, itself goes against Mr. Weties’ claim that it was all a fabrication by the police to fit him up. If that was the case, why would the police include that Mr. Weties got out of the car before going to Jacob Hivird’s, went to the bar and had nothing more to do with the Sandy Leo cheque and received nothing from it. They would hardly put that in the statement if they were out simply to get James Weties.
    
44. I turn now to the counts against Sandy Leo, 7, 8 and 9, cheque 2154189 that I have been talking about. Also counts 1, 2, 3 and 5 regarding cheque 2154172 and counts 18 and 19 regarding cheque 2155258.
    
45. Again the sole issue is whether it is proven that Sandy Leo was acting dishonestly in depositing those cheques into his bank account and making the various withdrawals which form the actus reus of these counts.
    
46. It is useful first to record what Mr. Leo did in fact, before turning to his state of mind and what he did appears from his bank statement which covers the period 15th May until 5th July. To understand his state of mind the first thing one has to look at is what he actually did and what he must have known he was doing.
    
47. He opened a bank account 5767001 of the National Bank on the 15th May 2007. The initial credit was a loan of VT 60,000 from the bank. By the 18th May all of that had been withdrawn and there was a nil balance. Sandy Leo was a small time builder but employing several workers. On 5th June he deposited government cheque 2154189. This was originally made out to him for VT 280,000, picked up by him from the Finance Department that very day. When he deposited it was no longer for VT 280,000, it was for VT 980,000. He withdrew VT 400,000 that same day the 5th June. On 6th June, he withdrew another VT 150,000 and VT 50,000. The bank took the VT 60,000 loan. The evidence does not disclose whether Mr. Leo took steps to repay it or whether the bank simply saw a credit balance and plucked it, which is what banks sometimes do.
    
48. On the 7th June he withdrew VT 20,000 and VT 80,000, on the 8th June VT 50,000 and VT 5,000 and so it went on in series of relatively small withdrawals in the tens of thousands. But by 19th June, there was all of VT 24 left in his bank account. Those transactions I have mentioned are the subject of counts 7, 8 and 9. For unexplained reasons only the first two withdrawals are the subject of charges, that is counts 8 and 9, and the other withdrawals are not the subject of charges.
    
49. Then on 27th June, he deposited Government cheque 2154172 for VT 11,805,000. This cheque at the time of the deposit was made out in his name. In fact it was originally for VT 500,000 and was the MP allocation for Malon Hospmander and the original payee was the Unua Community of Malekula. The payee and the amount had been fraudulently altered by Salendra. After the deposit of this forged cheque on 27th June, Mr. Leo made the following withdrawals: VT 5 m on 28th June, VT 3 m on 29th June, a transfer VT 1.2 m to another account of his on the 2nd July, a withdrawal of VT 2.7 m on the 2nd July. So by the 2nd July the account was back down to VT 3424.
    
50. The very next day 3rd July, he deposited government cheque 2154925 made out to him for an amount of VT 9.895.000. This cheque had also been forged by Salendra Sinh. That was originally made out to a business called Sportz Power and was originally for VT 7,500.
    
51. On the same day as that deposit he withdrew VT 3.800.000 and transferred another VT 3.800.000 to another account of his and on the 5th July he withdrew VT 200.000 and VT 2 m. So the statement ends on the 5th July where there was VT 98.000 left in his account.
    
52. So that gives an idea of the scale of the deposits and the withdrawals that Mr. Leo was making of Government cheques handed to him by Salendra. He says that the cheques were folded over and he did not know how much he was depositing and he did not know how much he was withdrawing because he did not look at the withdrawal slips, which however were not filled in by Salendra in his case, they were filled in by tellers on instructions from him, Mr. Leo. I find that that is nonsense, that he must have been well aware of the amounts that he was depositing and the amounts that he was withdrawing. Again he is perhaps a not very well educated man but he runs a business and he is not so silly that he does not know when he is depositing a cheque for millions and when he is walking out of a bank with millions of vatu in cash, having asked for it from the tellers.
    
53. Regarding that last cheque there was no count in the present information relating to these transactions. They were the subject of a separate trial in Criminal Case 74 of 2007.
    
54. Finally on the 9th July Mr. Leo attempted to deposit into his bank account a Government cheque 2155258 for no less than VT 26,800,000 made out to his name. This cheque was originally for VT 500,000 and made out to the MP Community Development Fund and was part of the MP allocation of the defendant Noel Tamata. This cheque is the subject of counts 18 and 19 against Sandy Leo.
    
55. All these cheques were forged by Salendra and given by him to Sandy Leo to bank. That is undisputed. Mr. Leo’s defence is that was not acting dishonestly in banking these cheques and withdrawing all these sums and at all times he believed that it was Salendra’s money, and that Salendra just did it because he did not have a bank account in Vanuatu so he was using Mr. Leo’s bank account and he, Mr. Leo, gave all the money to Salendra.
    
56. Mr. Leo made a number of incriminating statements to the police all of which he signed and all of which he denied saying, at least as far as any incriminating parts were concerned, claiming they were fabricated by the police, that he was afraid of the police, overborne by the Police. So he did sign them and nothing in them that was in any way incriminating was any statement of his.
    
57. The statement that Mr. Leo made that I find carries the most weight is the first one, the one he made on 10th July to Frazer Tambe. That has the most evidential value because it was made when this matter first came to light. Mr. Leo went into the bank to deposit this huge cheque on the 9th July, the bank staff had become suspicious, told him to come back the next day. He told Salendra who evidently fled Vanuatu that night on a yacht. I find that he was telephoned to come back to the bank the next day and that is why he came back. And that in the meantime the bank had discovered that this cheque was originally made for VT 500,000 and obviously they would see the other large cheques banked into Mr. Leo account as well. And no doubt were becoming aware, if they were not already aware, that they had been altered in amount.
    
58. It was later that day, 10th July, the day he was taken to the police station, that he was interviewed. And as I said at that stage the police had had no chance to find out information from other people. Their first stop was the Sandy Leo statement of the 10th July. That is what they said and it is entirely credible and natural. I have already read a lot of that statement relating to the other cheque but it continues on with a very full statement about all the cheques. It also gives a very detailed story about what happened in the preceding 24 hours or so after the bank had refused to accept the VT 26 m cheque and told him to come back the next day.
    
59. Basically what he said was that he told Salendra what happened and he spent a lot of that day with Salendra and two Frenchmen. And there was evidence about Salendra giving him the keys to the rental car that Salendra had delivered back and I am satisfied from that statement that Mr. Leo was aware that Salendra was going away, was going to be off.
    
60. In the statement Mr. Leo admits knowing where the cheques came from. He was not exactly right about that, with the VT 26 m cheque for example. He said that it came from Sato Kilman. We know it did not come from Sato Kilman, but we know it came from an MP allocation of a Member of Parliament from Sato Kilman’s party. But what it means as far as Mr. Leo is concerned is that he knew that these cheques were made to someone else’s name and it is plain from that statement that he knew these cheques had been altered by Salendra, all of them. And the point about it is that the information he gave was not information that the police knew, it was information that he gave them and they could not have known it at that time.
    
61. I am satisfied that that statement is certainly true and it carries more weight than the later record of interviews as far as I am concerned. And the information in it came from Mr. Leo and not the other way round. There is no other credible conclusion that can be drawn.
    
62. My findings about making of this statement and the several other statements, have been recorded in the voir-dires and I do not want repeat them.
    
63. In his evidence as well as claiming always to be acting honestly, Mr. Leo even said that he had not given his VT 280,000 cheque to Salendra at all but that he had let him look at it and then Salendra had put it back in Mr. Leo’s cloth bag. He implied that Salendra then stole it from him without his knowledge. This despite the fact that on the very same day, Sandy Leo banked a cheque knowing it was made out to him and it was for VT 980,000 and he withdrew VT 400,000 and he said in his evidence that he did not realise that it was his own cheque which he had been showing to Salendra and giving to him in the taxi that very morning. He did not give any reason then why he did not bank his own cheque at the same time. You would think if he was telling the truth that when he went in to bank a cheque made into his name for VT 980,000 which he thought came from Salendra that he would have tried to bank his own cheque of VT 280,000 at the same time, since he was in the bank banking cheques into his account but not a whisper of that.
    
64. I find that the story he told in evidence about effectively the cheque going back into his bag and implying that Salendra had taken it out without his knowledge is preposterous. I am satisfied that he made it up, probably while he was giving evidence, on the spur of the moment. Certainly that is the first time a year on as far as I am aware that that suggestion has ever been made by Sandy Leo.
    
65. In my view it is simply not credible to suggest that everything in the statement of the 10th July was made up by the police because at that time they knew nothing about the movements of Sandy Leo and Salendra the day before. Really if that statement is accepted, and I do accept that it is true, then for Mr. Leo to suggest he did not know these were forged cheques is completely unbelievable.
    
66. There were however a series question and answer interviews all signed by Sandy Leo in which further damning admissions were made, all of which he now denies, saying that they were fabrications by the police. It may be that some of words in these later records of interview were suggested by the police and criticisms can be made and were made by Mr. Toa of the way those statements were taken and signed. But I have no reasons at all to believe that they are substantially fabrications and, as Mr. Leo would have us believe, the police were making them up themselves, all of them, simply to get Mr. Leo.
    
67. I find Mr. Leo’s own evidence totally unconvincing. He is not an educated man and I do not think he is that clever. He simply resorted to blanket denials of everything incriminating and a bland reiteration of the claim that he always believed he was acting honestly however implausible that might seem when faced with the evidence.
    
68. It is for the prosecution to prove that he was acting dishonestly, not the reverse, and by giving evidence, Sandy Leo himself giving evidence, that does not change the position. However, I am completely satisfied that Sandy Leo knew he was acting dishonestly, and his evidence to the contrary flies in the face of common sense and other evidence. You need only to look at his bank statements to know that he was paying in a series of huge cheques made out to himself in his bank account, withdrawing them as fast as possible and he must have known that he was not entitled to them. He must have known also that Salendra could not possibly be entitled to those. And as I say, his statement shows that he knew where some of those cheques had come from. And it was not from the Finance Department made out to Sandy Leo, but it was cheques made out to other people. The evidence against him is overwhelming. I have not actually mentioned all of it. I have no hesitation in finding him guilty of all the counts against him.
    
69. Finally, I turn to Messers. Tamata and Hospmander in relation to the charge against them relating to the last cheque, count 17. It involved an allegation that they both took part in selling Mr. Tamata’s MP allocation cheque to Salendra. The prosecution case is that Mr. Hospmander got the cheque from Mr. Tamata on the basis that he would sell it to Salendra for double value, double its face value, VT 1 m, and they would split the profit of VT 500,0000 between them. Obviously also the prosecution allegation is that they knew the cheque would then be falsified.
    
70. It was undisputed that Mr. Tamata’s MP allocation cheque was given to him on Friday 6th July by Gary Mahinga. It had been photocopied so it is the only cheque where we could see what it looked like beforehand and we have what it looks like now, after alteration. It was cheque number 2155258, the payee was MP Community Development Fund. The amount was VT 500,0000. Three days later by Monday 9th July that cheque was presented for deposit at the NBV by Sandy Leo. Now it was made out to Sandy Leo Building Construction and it was for no less than VT 26,800,000. Sandy Leo said it was given to him by Salendra Sen Sinha. Obviously between the Friday and the Monday, Salendra had got his hands on the cheque and altered it.
    
71. The prosecution must prove that each accused, Tamata, who undoubtedly had the cheque, and Hospmander, a fellow MP of the same party, were deliberately involved in supplying the cheque to Salendra and that at that time they foresaw the fraudulent use of it by Salendra was a real or substantial risk or a real possibility and they intended to assist him in that by supplying him with the cheque.
    
72. The evidence about what happened in between 6th and 9th July comes from several sources:

i) The statements of the accused.

ii) The evidence of the other witnesses, Kalo Fred and Lavinia Vanusoksok.

iii) Evidence against Mr. Hospmander only about what he said to Willy Watson and Lino Saksak relating to another cheque.

iv) And the evidence of each accused themselves and the evidence of their witness Arthur Aru.

73. I will deal with the evidence in that order.

1. The evidence of the accused:
   

• Noel Tamata
  

There was a record of interview of Mr. Tamata relating to an interview by George Songi and Benson Willie of the police force on the 11th August at 14:30 pm. Like the others it consisted of a series of prepared questions. Effectively Mr. Tamata declined to answer any question of substance as was his right, although he gave particulars and confirmed receiving the cheque on the 6th July from Garry Mahinga. He also declined to make a handwritten statement, simply saying he didn’t want to make a statement and that is a position he is perfectly entitled to take. It is what is in the caution which is given to him for that purpose. It is worth pointing out here that this MP was quite able to say "No I do not want to make a statement" and quite able not to answer questions despite the fact that the police were there and in the fraud office and so on.
It says something in relation to those who said they couldn’t say "No", that the police overbore them.

74 . Malon Hospmander

He was interviewed 2 days earlier on the 9th August. He made a handwritten statement in Bislama. I am satisfied it was voluntary. Indeed I think this was one of the few statements whose admissibility was not challenged, although its weight and accuracy were. I have to say that in that regard I have no basis for believing that it contains anything apart from what Mr. Hospmander said. It is also in Bislama and I apologize in advance for my Bislama in reading it out but it does bear reading out because it is important

"Mi name blong mi I stap antap, mi makem statement ia follem involvement blong mi long cheque number 2155258 we MP Tamata nao hemi beneficiary long amount VT500,000. Mi wantem talemaot se mi no save how nao process we MP Tamata I makem blong kasem cheque ia but mi wantem expainem how nao mi invlive long cheque ia. Mi recall se long Saturday number 7th July 2007 hemi wan Saturday long morning Salendra hemi bin ringim mi long house long Kawenu school. Taem hemi ringim mi hemi bin askem mi sipos wan long ol friend blong mi I gat any cheques. Mi bin talem long hem se "maybe MP Tamata hemi gat wan cheque. Hemi bin askem mi sipos mi save go karem cheque ia. So mi bin go luk Tamata (MP) long house blong hem long Fesh. Lng time ia mi bin stoppem wan taxi long kawenu mo karem mi I go antap long Fresh Water. Mi no remember number blong taxi. Taem mi kasem long Fresh Wota, Tamata (MP) hemi stap after mi aske hem sipos mitufala I save givim cheque blong hem long Salendra. Long time ia Salendra, agree after mitufala I out I go long Waterfront. Mi wantem talemaot se Salendra I bin talem long mi se sipos mi givim check ia long hem bae hemi givim VT 1,000,000. Wetem toktok ia nao, Tamata I agree so mifala I come town blong meet long Water Front. Taem mifala I kasem Wota front, taxi droppem mitufala long water after taxi mi sendem hem I go from Salendra long house blong hem long number three area. I no long time nating Salendra I come and meetim me long Water Front long same day ia nomo. Long Waterfront nao, mi bin givim cheque ia long Salendra and Salendra I handover VT 1,000,000 long mi while MP Tamata hemi stap long ples blong Top Video. Taem mi givim cheque ia finish, mi bin out long Waterfront blong come meetim Tamata long Top Video. Time mi mitim Tamata finish mitufala I kam long city lodge and mi bin pem wan room long ples ia after mitufala I go inside mo sharem money. Long time ia mitufala I sharem 250,000 VT each while 500,000 VT I go towards ol allocation blong MP Tamata. Mi wantem talemaot se wetem money ia nao mi bin karem mo go wetem long China long Monday 9th July 2007. Hemia nao tru tok blong mi."

75 . Kalo Fred

His statement was read by consent. On a Saturday in July, Hospmander arrived at his house at lunch time in a truck, driven by Jonathan Willie. Hospmander asked to be dropped at his house in Kawenu, and Kalo followed and he jumped out and Kalo Fred went back there and picked him up later. They then went to Fresh Wota at Hospmander’s request to pick up Mr. Tamata, and they did so and dropped them at Centre Point. He said that later Hospmander rang and asked him to pick up Tamata at City Lodge. But he was not there waiting when they got there and they had to wait for him but he came down and then directed them to Centre Point. There Mr. Tamata bought some meat and some fuel at Fuel Station to the value of VT 1,000 and then gave the two of them VT 1,000 each for kava, and they then dropped Mr. Tamata at Fresh Wota.

He was not able to give a date in July but he did say it was a Saturday. The 7th July was a Saturday. He also said Mr. Hospmander was there. Mr. Hospmander went to China on the 9th July and after his return he went to Malekula. I conclude that it is likely that it was the 7th July that Mr. Kalo had this experience of travelling with Messrs. Tamata and Hospmander into town.

The evidence was not challenged. It was given in writing and what it means is that Mr. Tamata travelled with Mr. Hospmander that day and it does not put him inside City Lodge but it puts him as coming from City Lodge when they picked him up.

76. Willy Watson

The evidence of Willy Watson was read by consent. This again was unchallenged. A number of his statements were read but the important one is the statement of 17th July which referred to another cheque, a different cheque, a cheque which had earlier been given to Salendra sometime prior to the 27th June and was the subject of Criminal Case 77 of 2007. This is the statement of Mr. Willie Watson who is the Finance Officer in Parliament and he gave evidence which, because it was read was unchallenged, which said that

"Mi no really remember date be mi save confirmem afta long polis investigation regarding bigfala fraud case ia mi yet mi bin invaetem hem (meaning Mr. Hospmander) I kam long ofis mo long presence blong Clerk, Lino Bule Saksak, MP Malon hemi admittim se I tru hem nao I bin kam collectem cheque ia mo go givim long man ia Salendra long Waterfront. Mo taem ia Salendra hemi askem cheque blong hem mo hem (MP Malon) hemi askem blong Salendra I givim VT 1 m so long taem ia nao Salendra hemi givim VT 1 m long hem. So follem storian blong MP Malon yet hemi admittim se aot long mani ia hemi givim VT 500,000 long pipol blong hem long Malekula mo hemi karem VT 500,000 kasem commission."

And that statement was unchallenged and it was also supported by the evidence also read of Lino Saksak, Clerk of Parliament. That is very important evidence because what it establishes is that Mr. Hospmander had admitted to earlier (earlier than this cheque we are talking about) having sold his own MP cheque of VT 500,000 to Salendra for VT 1 m. And that he had pocketed the VT 500,000 extra himself and that that happened before the 7th July 2008. It is very strong evidence confirming what he said in his statement to the police is true.

77. Lavinia Vanusoksok – Receptionist at City Lodge
    

She confirms that Mr. Hospmander did hire a room at City Lodge that Saturday afternoon the 7th July, which is confirmed by a written hotel record, but she did not give evidence of seeing Mr. Tamata there. She did give evidence of seeing Mr. Hospmander there.

78. Mr. Tamata & Mr. Hospmander & Arthur Aru in Court
    

Mr. Tamata essentially said this: he said that there had been a death in his family of a close relative, a sister in law who is like a mother to him, who had died on the 3rd July in Pentecost. He said that he had no money to go there but it was important for cultural and family reasons that he got there within a week of the death. He said that on the morning of the 7th July, the Saturday, Mr. Hospmander came to his place at Fresh Wota to pay his condolences in relation to the death. He said that he brought food when he arrived and that after he had given his condolences they talked and Mr. Hospmander asked him if he was going to the Island because of the death and he replied that he did not have the money to go and that Garry Mahinga had been unsuccessful in trying to cash the MP allocation cheque the day before and he also referred to a letter he had received demanding money for some legal services that had been provided to him.

79 . He said that Mr. Hospmander told him that he had VT 500,000 and that he recognised the importance of the death and Mr. Tamata’s duties in relation to it and he said that on Monday he will be going to China and he said if you really want funds, I will give them to you and you can give me your MP allocation cheque as a guarantee and when I come back from China, you and I will deposit the cheque in the community bank account and after it you will then have VT 500,000 for the community. In other words, that he would lend him VT 500,000 on the security of possession of the cheque.

80 . And he said that he agreed to that, so Mr. Hospmander went back to his house and came back in the morning, Saturday morning 7th July, with a brown envelope holding money and he gave it to him at his house in Fresh Wota and that Arthur Aru was there along with MP Malon and that he had never heard of Salendra until he first heard about this news coming out on the radio.

81. He was cross examined considerably on that as to the truth of the cultural duty to go back to Pentecost and he was cross examined about Kalo Fred’s evidence that they had been dropped at the Centre Point and he denied that, he denied being picked up again by Kalo Fred and Jonathan from City Lodge later in the day, but he did acknowledge going to Centre Point giving money for fuel and giving them money for kava.
Various questions were asked which were designed to throw doubt on the story that Mr. Tamata had told but he maintained that that is what happened.

82. Mr. Hospmander

Then Mr. Hospmander gave evidence. He said similarly that he went to the Tamata house on the morning of the 7th July, to give condolences and he asked why Tamata had not gone to Pentecost, and he was told that it was because of money. He said that I have got VT 500,000 if you need it you give me your cheque to hold as a guarantee for the cash. He said he had VT 500,000 in cash from his own cheque meaning the earlier MP allocation cheque. He said that Mr. Tamata agreed to the proposal, he went back to his house gave him the cash and took the cheque. He said that Arthur Aru was there and he then said that the next day Sunday, he gave the cheque to Salendra Sinha at the Waterfront bar, outside the bar.

83. And the story he told was that he told Salendra that he was about to travel overseas so he would leave the cheque with Salendra and when he came back the three of them would cash the cheque. And he said he did go to China the next day and then back to Malekula. He was questioned about his statement, all the important parts of which he said was not what he said.

84. He acknowledged renting a room at the City Lodge on the 7th July, and being there for some hours on the Saturday afternoon or evening. He acknowledged being picked up by Jonathan Willie but denied that they drove in to town later in the day and picked up Tamata on the way.
    

85. His answers about when he met Salendra, first of all he said he had never heard of him until he called on the telephone on Sunday and that was the first time he ever met Salendra and of course it contradicts what he said to Willy Watson about giving his earlier cheque to Salendra a couple of weeks earlier. He then after lunch did not want to answer questions about when he met Salendra but was told he had to. He denied having met Salendra before but said that he gave Salendra the cheque for VT 500,000 in cash. He denied that he gave it for VT 1 m.

86. The story he told the Court was that Salendra was a person he never knew or never heard of and who rang him out of the blue on the Sunday morning and asked him if he had a cheque and he then went and gave him his cheque for VT 500,000. He said he did not know why Salendra had asked him for a cheque. He said that when Salendra rang him he said that he had a cheque but it belonged to Tamata. Salendra said bring it to me I will give you money for your cheque and he did so. And he knew the cheque of course was made to the MP community fund.

87. Arthur Aru
    

Arthur Aru is a relation of Mr. Tamata’s and he gave evidence supporting Mr. Tamata’s version of events.

88. First of all it is necessary to state the Court’s view of the evidence of Mr. Hospmander. That part of his evidence about not knowing Salendra and having been rung by a person he never heard of on Sunday morning who asked him for no apparent reason if he had a cheque and that he then went and sold this cheque to this person for VT 500,000, that evidence is quite frankly preposterous. It is ridiculous that Mr. Hospmander would expect anyone to believe it. It is simply not credible.

89 . Secondly, it is totally inconsistent with the unchallenged evidence of what he told Mr. Watson, that he had sold his own MP allocation cheque to Salendra for a VT 500,000 profit not long before the 7th July, less than 2 weeks before, or maybe 2 weeks before.

90 . Thirdly, there is no reason to disbelieve his statement and every reason to believe it. I am completely satisfied that Mr. Hospmander sold the Tamata MP allocation cheque to Salendra for VT 1 m, double its face value, exactly as he had done and admitted doing, in relation to his earlier cheque and as he admitted doing to the police in relation to this cheque. His story about Salendra not being known to him and just ringing him up out of the blue, no one would believe it.

91 . I am satisfied that he knew that that cheque would be in some way fraudulently used by Salendra for the following reasons:

i) he knew that Salendra was not entitled to the Government cheque he gave him

ii) He knew that it was made out to the MP Community Development Fund and that Salendra had no access or ability to draw on that community bank account

iii) He must have known that Salendra was not from Vanuatu and had no legitimate business here

iv) He must have known that the whole transaction with Salendra was dishonest

92 . It was a community development cheque in trust for the community which he was selling for double its face value and in my judgment, he was selling it for that so that he could pocket for himself the profit, or some of the profit, and take it with him the next day to China as spending money.

93 . He knew that the amount being paid for the cheque was double its face value and he must have known that Salendra would not have paid that sum unless he could use the cheque in some way dishonestly or illegally to obtain more. And he must have known that tampering with the cheque or dishonestly using it, in particular forgery, was a real possibility and even a probability in those circumstances. And I find that he is guilty of that offence.

94 Mr. Tamata

There is no doubt that he gave the cheque to Mr. Hospmander. However the only admissible evidence of the circumstances in which he did so is what he, Mr. Hospmander and Arthur Aru said in Court. Of course he made no statement himself, as is his right. And, as I said before, the statement of Mr. Hospmander about splitting up the money with Mr. Tamata is not admissible evidence against Mr. Tamata, only against Mr. Hospmander.

95 . I have to say that I find the evidence given by Mr. Tamata and backed up by Arthur Aru as to the circumstances in which the cheque was given to Hospmander difficult to believe. It seems to me a fairly contrived explanation. In some respects it conflicts with Kalo Fred’s evidence about what happened that day between Tamata and Hospmander.

96 . However it really leaves me without any reliable evidence as to just what Hospmander said to Tamata to get his cheque off him. So I cannot be certain or sure that Tamata did know exactly what Hospmander was going to do with it. There is no evidence of contact between Tamata and Salendra. It is possible or more than possible that Hospmander kept all the profit himself and simply offered to give cash to Tamata for the value of the cheque of VT 500,000.

97 . So I have considered all the evidence and I am not satisfied that there is sufficient evidence to be sure that Tamata knew the cheque was going to be given to Salendra for a VT 1 m and which would have led (if he had known that) to the inference that he knew something dishonest would be done with it. So I acquit Mr. Tamata on the charge facing him.

98 . I should point out however that he comes out of this affair with very little credit. Even on his own evidence he handed over possession of this cheque which he held in trust for his community to Mr. Hospmander in exchange for cash which he was going to use for his own purposes. Mr. Tamata seems not to have realised that even his own story could well support a charge of the theft of the cheque against him by converting it to his own use. One thing that does come out of these trials is the misuse of MP allocation cheques. They are not the personal property of the MP, they are held in trust for the MP’s community, not to be sold, bartered or given as security for the purposes of the MP.

99 So that takes me to the end of my decision, Mr. Tamata is acquitted and may stand down now. The other defendants are convicted of the charges facing them.

DATED at Port-Vila this 11th day of July, 2008

BY THE COURT

C.N. TUOHY
Judge