Dausabea v Regina [2009] SBCA 11; CA-CRAC 20 of 2008 (26 March 2009)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Nature of Jurisdiction:	Appeal from Judgment of the High Court of Solomon Islands (Cameron J)
Court File Number:	Criminal Appeal Case No. 20 of 2008 (On Appeal from High Court Criminal Case No. 127of 2008)
Date of Hearing:	17 March 2009
Date of Judgment:	26 March 2009
The Court:	Goldsbrough P Williams JA Hansen JA
Parties:	Charles Dausabea Appellant -v- Regina Respondent
Advocates: Appellant: Respondent:	C. Ashley R. Olutimayin
Key Words:	Criminal Law – fraudulent conversion sufficiency of evidence.
EX-TEMPORE / RESERVED:	Reserved
ALLOWED / DISMISSED:	Dismissed
Pages:	1 - 4

JUDGMENT OF THE COURT

The appellant, Charles Dausabea, was convicted in the Magistrates’ Court of one count of fraudulent conversion contrary to section 287(1) of the Penal Code. He was sentenced to 18 months imprisonment and ordered to pay compensation of SDB40, 000. He appealed unsuccessfully to the High Court.

He now appeals to this Court pursuant to section 22 of the Court of Appeal Act which limits the appeal to a question of law only.

An agreed statement of facts was tendered in the Magistrates’ Court and further evidence was led by the prosecution. The appellant also gave evidence and called further witnesses.

The following facts were not disputed in this Court:

(i) The appellant, a Member of Parliament, requested of the then Prime Minister that an amount of SBD40,000 be provided from the Prime Minister’s Discretionary Fund for a building project of the Kukum SDA Church;

(ii) The Prime Minister approved the request and the necessary steps were taken to give the appellant a government cheque drawn in his favour for SBD40, 000. All documentation referred to the SDA Church project.

(iii) The appellant deposited that cheque into his private bank account.

(iv) The SDA church did not receive any of the funds for the purpose of the trust.

(v) The appellant used the funds for purposes other than that for which he received it.

In this Court counsel for the appellant accepted that the appellant received the funds as trustee, and conceded there was no evidence that the terms of the trust had been altered in any way before the funds were disposed of by the appellant.

The contention on behalf of the appellant in this Court, as it was before the High Court judge, was that before conversion could be established the prosecution had to lead evidence from the then Prime Minister, the person who controlled dispositions from the Discretionary Fund. Counsel was not in a position to inform this Court as to what the then Prime Minister could say which would be relevant to the charge of conversion. As it was conceded the money in the Fund was public money one would expect any variation in the use to which the money given to the appellant could be put would be documented. The only available documentation was that indicated above stating the money was to benefit the SDA church.

This Court has come to the clear conclusion, as did the High Court judge, that the prosecution did not have to call the then Prime Minister in order to prove the charge. The case against the appellant was overwhelming and he was rightly convicted.

The Notice of Appeal to this Court also contends that the Magistrate erred in the exercise of his discretion in imposing sentence. Under section 22 of the Court of Appeal Act there is no right of appeal on "severity of sentence". Any appeal against sentence must be based on an error of law.

The contention on behalf of the appellant is that the Magistrate erred in law in imposing a custodial sentence coupled with an order for compensation. Counsel contended that only a compensation order should have been made.

That contention must be rejected. The Magistrate clearly had power to sentence as he did and there was no error of law involved.

The appeal is dismissed.

Goldsbrough JA
Acting President of the Court of Appeal

Williams JA
Member of the Court of Appeal

Hansen JA
Member of the Court of Appeal