Vakacegu v Reginam [1978] FJSC 53; Criminal Appeal 067 of 1978 (6 October 1978)

IN THE SUPREME COURT OF FIJI
Appellate Jurisdiction

Criminal Appeal No 67 of 1978

ERONI MATAVESI VAKACEGU
Appellant

v.

REGINAM
Respondent

Appellant in person.
Mr. M. Raza for the Respondent

JUDGMENT

Appellant was convicted by the Magistrate's Court Suva on two counts of larceny by servant contrary to sect section 306(a)(i) of the Penal Code and was sentenced to 18 months' imprisonment on each count the sentences to be served consecutively.

Appellant appeals against his conviction and sentence.

He had been charged with twenty-two counts altogether, all involving acts of dishonesty. He was acquitted on all but two counts, the subject of this appeal.

Appellant is unrepresented. During the trial he dispensed with the services of counsel and took over the conduct of his own defence. He has a good command of English and, according to the record of the trial, cross-examined prosecution witnesses at considerable length. At the end of the prosecution case he elected to give evidence and informed the Court that he had no witnesses to call.

His grounds, stated in a layman's language, seek among other things leave to adduce evidence. There is nothing in the grounds or what the appellant has said to warrant the granting of such leave and the appellant was so advised at the hearing of the appeal. (R. v. Parks 46 Cr.App.R. 29). I do not accept his submission that he did not appreciate the significance of choices given to him by the learned Magistrate at the end of the prosecution case. I am convinced from the perusal of the record that appellant's decision to give no evidence and to call no witnesses was perfectly deliberate leaving no room for misunderstanding.

In relation to Count 2, which appellant dealt with first, he says that he himself has benefited nothing from the transaction. He admits taking the money, but with the knowledge of the Bank. He gave $1,500 to one Fijian teacher and $400 to another. He mentions a "Fijian Agreement" which had been arrived at. He seeks an order from this Court requiring the two teachers to return the money to the Bank and that he himself be given a suspended sentence in place of the one he is serving now.

Appellant's submission amounts, in fact, to an attempt to give evidence which, at this stage, this Court cannot accept. The order he seeks cannot, in any case, be properly made by this Court.

Learned counsel for the respondent is aware of no new facts that have come to light since the trial. He refers to the evidence of Anare Osborne (P.W.5), the Treasurer of the Fijian Teachers' Association. When questioned by him, appellant had refused to tell him how he had obtained the money but had himself undertaken to pay it pack. This, of course, was before the matter was officially reported to the Bank.

Appellant made a great many allegations against the Bank, his employer. I can find no evidence to suggest that he took the money in question with the knowledge and approval of his superior officers. In fact Austin (P.W.9), the Sub-Manager of Barclays Bank, stated that several months before this offence occurred, appellant had been demoted to a junior position. He had been warned twice in writing not to act contrary to instructions before being dismissed on 27th May 1977. These facts were not seriously challenged by appellant at the trial.

On the evidence before him the learned Magistrate found that appellant had used his position to obtain $1,900 from the Bank on the strength of a cheque he knew to be worthless. Later he removed the cheque as well. The Bank has been permanently deprived of that amount. I can see nothing wrong with that finding.

With regard to Count 1 the learned Magistrate found that the appellant accepted $1,000 in cash on behalf of the Bank from an old Fijian Taitusi to be placed to his credit. He also found that this money was never placed to his credit. It was, instead, used to open a cheque account in the name of Vula Vakacegu, appellant's father, an account which the appellant controlled and operated.

At the hearing of the appeal appellant submitted that Taitusi knew that his money was being deposited into Vula Vakacegu's account, and had agreed to it. This again amounts to an attempt to give evidence before this Court. At the trial both Taitusi and Vula Vakacegu testified that they had not known each other at all. This remained uncontradicted. I can see no reason why the learned Magistrate's findings should be disturbed.

Appellant repeatedly stated that whatever he did was to help the Fijian people and that his superiors at the Bank approved of it, as he was bringing to the Bank a great deal of Fijian business. Appellant gave no evidence at the trial and this was never put to Austin, the Sub-Manager of the Bank. As for helping the Fijian people, it is needless to say that both the complainants and almost all the main prosecution witnesses relating to these counts were themselves Fijians and it is on their evidence that appellant was convicted.

I can see no merit in the appellant's submissions and his appeal against conviction is dismissed.

With regard to the sentence, the function of this Court is to examine the sentences imposed by the trial Court to see if they are manifestly excessive or wrong in principle. In considering an appropriate sentence the learned Magistrate referred to the position of trust appellant had occupied at the Bank and also to the manner in which he had abused the authority which he, by virtue of that position, exercised over his junior colleagues. In view of that I can find nothing wrong with the imposition of a custodial sentence. The two offences were quite distinct both as to time and as to the nature of fraud used and the order of consecutive sentences cannot, therefore, be regarded as irregular in any way. The extent of the sentences is anything but manifestly excessive.

The appeal against sentence is, therefore, also dismissed.

(G. Mishra)
JUDGE

Suva,
6th October 1978