Republic v Kourataake [2008] KIHC 72; Criminal Case 50 of 2008 (5 December 2008)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Criminal Case 50 of 2008

The Republic

v

Ruatu Kourataake

For the Republic: Ms Pauline Beiatau
For the Accused: Mr Giles O’Brien-Hartcher

Dates of Hearing: 1 & 2 December 2008

JUDGMENT

The accused, Ruatu Kourataake, is charged with conversion pursuant to section 271(1)(c)(i) of the Penal Code:-

271(1)Any person who ---

(c)(i) being entrusted --- with any property in order that he may retain in safe custody --- the property ---

Fraudulently converts to his own use or benefit --- the property or any part thereof ---

is guilty of a misdemeanour and shall be liable to imprisonment for 7 years.

The particulars of the charge against Ruatu:

On a day or days unknown between 1st day of January 2006 and 31st December 2006 at Betio on South Tarawa in the Republic of Kiribati, Ruatu Kourataake being entrusted by his church group (Mataroan Karawa Group, KPC) with its property namely monies, to retain in safe custody for their Group, had fraudulently converted the sum of $6,850 to his own use or the use of any other person.

When his term as treasurer came to an end late in 2006 his successor as treasurer and other office bearers noticed discrepancies between the cash book which Ruatu had kept as treasurer and the bank statement. There had been no formal hand-over/take-over as Ruatu did not go to a meeting arranged for that purpose. The meeting was arranged for a Saturday night. He had an obligation, he said, to a dancing group on the same night. He sent instead his wife, Nei Taruma, who handed over the cash book but no cash to go with it.

Finally Ruatu’s successor as treasurer, Toniki Rainiim, went to Ruatu’s house. Toniki said he took with him the cash book and bank statement. Ruatu denies that Toniki had the cash book with him.

Having had no satisfaction from Ruatu members of the group went to the Bikenibeu police station to make a complaint. They left the cash book with the police who must have lost it. A disadvantage for the prosecution: manna from heaven for the defence. The prosecution was obliged to rely on the recollection of several witnesses to prove entries in the cash book.

The Group had an account with the Bank. To withdraw from the account, the Bank required the signatures of two of the three office bearers, chairman, secretary and treasurer. Moneys could be deposited on one signature.

The bank statement was admitted by consent (Exhibit P2).

The amount converted is alleged in the indictment to be $6,850. No application was made to the Court before trial for particulars and how it is made up is not clear. Fortunately for the prosecution to prove the exact amount converted is not essential. It is sufficient for the prosecution to prove some amount.

The prosecution called three members of the Group – Etau Kitina, chairman of the Group in 2007, Toniki Rainiim, Ruatu’s successor as treasurer and Nangkiba Temeaa, chairman during Ruatu’s time in office. Special constable Mataio Marewenakin proved the accused’s caution statement, admitted without opposition (Exhibit P3).

All these witnesses were believable and I accept the outline of their evidence beyond reasonable doubt. Their recollection of dates and times varied – even amounts of money discrepant – but the outline of the prosecution case is clear: the cash book which Ruatu kept did not exactly correspond (as it should have) with entries on the bank statement. Moneys had disappeared, were not accounted for.

Etau Kitina:-

In 2007 when new members – require cash book etc. – myself, Toniki, Rainiim, new secretary. Asked old treasurer to produce cash book. Ruatu gave cash book to new treasurer. Checked transactions against bank statements: inconsistencies. Ruatu not present. Account – Mataroan Karawa ..... I checked cash book - $2,980 – none in bank statement. Other amounts we suspect should have been deposited. Withdrawal of $450 23 December without authority. Treasurer and chairman were to (sign) withdrawals. Some other amounts. Ruatu [did not respond to our invitations to our meetings].

Toniki Rainiim:-

Treasurer 2007-08 (Predecessor Ruatu) ..... Hand-over – but old treasurer did not turn up: cash book N. Taruma, wife of Ruatu. Expected to receive remaining balance in cash book. $832.10. None. Went to the Bank. Statement 4 May $2,180 not deposited. $1,870 entered in cash book but not on statement – no date.

$3,000 – cash book shewed withdrawal – statement shewed $3,550. No authority for its withdrawal. Ruatu withdrew it ..... Group did not withdraw but $450 withdrawn 21 December. -----

I went to accused – asked him. Said he had deposited amount but he would look for supporting documents from bank. I compared cash book and statement in front of him. He said nothing.

Mr O’Brien-Hartcher had objected to the reception of Toniki’s evidence that the Group expected to be given $832.10 with the cash book, the cash Ruatu had in hand. No cash was handed over. Mr O’Brien-Hartcher argued that this amount had never been mentioned before trial nor in the prosecutor’s opening: he was taken by surprise: the Court should not allow the evidence to be given. I overruled the objection. Mr O’Brien-Hartcher did not ask for time to take instructions from his client nor did he cross examine Toniki on that evidence which remained unchallenged.

Nangkiba Temeaa:-

In 2006 chairman of Group. Secretary treasurer IC money – my role to sign for withdrawal. To sign – two of three could sign. As chairman I can withdraw as well as treasurer. I did not deposit money. Withdrawals recorded: I did not make any entries: for treasurer to record ..... Accompanied Ruatu two or three times to bank to draw money .... Statement 27-10-06 $3,500 – do not agree I took $500. I did take some amount but not $500. $450 – December. Looked at amount to be withdrawn and signed at Bank but as I was not treasurer I made no record. Never received any of moneys withdrawn.

I rely on the general accuracy of the prosecution evidence. There were discrepancies between the cash book and the Bank statement. Ruatu tried to avoid meeting the new office bearers, gave no explanation for the discrepancies. In his caution statement he offered to repay.

Ruatu Kourataake:-

Deposit money – no receipts. Withdrawals – went to withdraw – two persons to sign slip.

27-10-06 - $3,550 – chairman co-signatory. Had cash book at time. Authorized to withdraw $3,000. Withdrew $3,500 – chairman consented to meet cost of purchases .... The extra $500 we used to purchase things. I cannot remember whether I made an entry in the cash book shewing the withdrawal of this extra $500 .... Meeting at my house with Toniki_ statement but no cash book. Toniki explained about the statement. If any inconsistencies I could deal with them. I think he was aware of extra amounts. Once I was invited to a meeting: I had another commitment and did not go. My wife did not go. I never took any money for my own use. Did not spend money except for Group.

Police – told them I would pay back money as they had accused me and bank cannot support me. I do not have any other place to go. Willing to repay. (Examination in chief).

I had the cash book. I later sent my wife with it to new treasurer. Do not know why I sent her. Not aware then of problems. I recorded in cash book. Toniki told me of problems but did not bring cash book. $1,870 + $2,980 – I deposited. My signature was enough of deposit slip ...... $832.10 – all up to Group members – some knew where it had gone. I did not explain this in cash book as forbidden for members to borrow money .... I did not have any cash in hand: balance with Group members. (Cross examination).

Ruatu in evidence gave the surprising and unexpected explanation that he did not have any cash to hand over with the cash book because he had, against the rules of the Group, lent the money to Group members. Not even hinted at in cross examination of the prosecution witnesses. I am forced to the conclusion that the explanation had not been in Mr O’Brien-Hartcher’s instructions and his client had made explanation up as he was giving evidence. A conclusion very much against the accused’s credibility.

The accused did not have to prove anything. The onus of proof is always on the prosecution to prove the charge beyond reasonable doubt. The prosecution has proved each element of the charge beyond reasonable doubt. The exact amount is unclear but I find beyond reasonable doubt a substantial sum was missing when Ruatu ceased to be treasurer. I give the accused the benefit of a (small) doubt on discrepancies and amounts shewn as withdrawn. The accused needed a second signature to withdraw. Probably Nangkiba simply signed withdrawal slips without checking or maybe even knowing what he was doing but it may be that, albeit wrongly, he gave Ruatu authority to make the withdrawal and that may be some excuse for the accused. I emphasize that there has been no suggestion Nangkiba or any other witnesses apart from the accused as being guilty of any wrongdoing.

Not so with deposits. The accused simply did not make them although they appear in the cash book. Ms Beiatau submitted the amounts as $2,980 and $1,870, a total of $4,850. And there is the missing cash, $832.10, not accounted for on the handing-over of the cash book. A grand total of $5,682.10. This is the least amount proved beyond reasonable doubt.

Mr O’Brien-Hartcher submitted that the offence of conversion has three elements – that the accused (1) entrusted with property, (2) fraudulently, (3) converts it to his own use.

He conceded the first element proved but argued that there was no proof of fraud nor that the accused converted the money to his own use.

The facts are against him with regard to the second element: the conduct of the accused in avoiding meeting his successor for a hand-over/take-over is strong evidence of a guilty mind: not to mention his offer in his caution statement to repay. The accused knew he had done wrong and it must have been deliberate wrongdoing.

As to the third it is a misconception to suggest the prosecution must prove the precise use to which the accused put the money. If that were required to prove a charge of conversion there would be very few successful prosecutions! To whatever use the accused put the money it was to his own use in that he decided what to do with it.

The prosecution has proved the elements of the crime of conversion. The accused is guilty of it.

Dated the 5th day of December 2008

THE HON ROBIN MILLHOUSE QC
Chief Justice