Director of Public Prosecutions v Toritelia [1986] SBHC 2; [1986] LRC 862 (10 February 1986)

[1986] LRC (Crim) 862

HIGH COURT OF SOLOMON ISLANDS

DIRECTOR OF PUBLIC PROSECUTION

v

TORITELIA

High Court:
Wood, C.J.
29th January, 10th February 1986

Criminal law - Embezzlement - Meaning of "fraudulently" - Intention to repay with hope or expectation of being able to do so - Whether defence - Penal Code, section 266(a) (ii) - Authorities on U. K. Larceny Act 1916 and Theft Act 1968 distinguished.

The respondent was charged before a Magistrate's Court with embezzlement contrary to section 266(a)(ii) of the Penal Code (the terms of which are set out at p.863 post). The respondent admitted taking the money involved but claimed that, at the time of taking the money, he intended to repay it out of advances for an overseas course he was expecting. The Magistrate, basing his decision on the English case R v Feely (1973) 57 Cr App R 312, CA, a decision on the Theft Act 1968, held that the respondent had not taken the money "fraudulently" and so acquitted him. The appellant appealed, arguing that the Penal Code was similar to the U.K. Larceny Act 1916, rather than the Theft Act 1968, so that pre-Feely authorities should be relied upon instead.

HELD: Appeal allowed; no order made.

The respondent should have been convicted. Since the Penal Code used the word "fraudulently", as did the U.K. Larceny Act 1916, rather than the word "dishonestly", as did the U.K. Theft Act 1968, English authorities on the former should be followed in Solomon Islands. R v Feely had no application to Solomon Islands law, which was the same as under the Queensland Criminal Code, in this instance section 391(2) (set out at p.865 post). (See p.866 post.) R v Williams (1953) 37 Cr App R 71 and R v Cockburn (1968) 52 Cr App R 134 followed.

Cases referred to in judgment:
R v Cockburn [1968] 1 WLR 281, [1968] 1 All ER 466, 52 Cr App R 134, CA
R v Feely [1973] QB 530, [1973] 2 WLR 201, [1973] 1 All ER 341, 57 Cr App R 312, CA

R v Williams [1953] 1 QB 660, [1953] 2 WLR 937, [1953] 1 All ER 1068, 37 Cr App R 71, CCA

Legislation referred to in judgment:
Australia
Criminal Code (Q.), sections 251(1) and 391(1) and (2)

Solomon Islands
Criminal Procedure Code, section 180A and 282(1)
Penal Code, section 251(1) and 266(a)(ii)

United Kingdom
Larceny Act 1916, section 1(1)
Theft Act 1968

Other Sources referred to in judgment:
Archbold, Criminal Procedure, Pleading and Practice, 36th ed. 9th Cum. Supp., paragraph 1477
Carter, Criminal Law of Queensland, 6th ed., p.328

Appeal
The appellant appeal, under section 281(1) of the Criminal Procedure Code, against the acquittal by a Magistrate's Court of the Respondent on a charge of embezzlement contrary to section 266(a)(ii) of the Penal Code. The facts are set out in the judgment.

J. Freeman for the appellant
A. Radclyffe for the respondent.

10th February 1986.

WOOD, CJ.:

The respondent was charged before the Magistrates' Court (Central) with embezzlement contrary to section 266(a)(ii) of Penal Code. The learned Principal Magistrate acquitted the respondent and from that order the Director of Public Prosecutions appeals in terms of section 282(1) of the Criminal Procedure Code. The grounds of appeal are-

1. Although the accused intended to repay the money embezzled, he had no reasonable belief that he could repay it on demand.

2. The accused had no belief, when he took the money, that his employers would consent to his taking it if they knew the facts

3. The learned Magistrate was bound by authority under the Larceny Act 1916 (UK) to find the accused guilty.

The particulars of the offence were that the respondent, at Yandina between the 6th December 1983 and the 28th February 1984, being a clerk, fraudulently embezzle $451.60 being part of the money, that is $759.10 received by him on account of his employer, the Central Island Provincial Government.

Section 266(a)(ii) of the Penal Code reads as follows -

"Any person who -

(a) being a clerk or servant or person employed in the capacity of a clerk or

servant -

(ii) fraudulently embezzles the whole or any part of any chattel, money or valuable security delivered to or received or taken into possession by him for or in the name or on the account of his master or employer;

is guilty of a felony, and shall be liable to imprisonment for five years."

The respondent at his trial admitted certain fact in terms of section 180A of the Criminal Procedure Code. On 14th of February 1984 he admitted in writing, in a letter addressed to the Treasurer of the Central Islands Province Tulagi, that he had taken and used the sum of $451.60, but that his intention at the time of taking the money was to "recover the whole sum with my advances for an overseas which I was proceeding on. The course was cancelled and with that the advances which were well underway, but not taken."

Between 21st May 1984 and 12 December 1984 the respondent, in fact, repaid a total sum of $300.

The sole matter in issue before the learned Principal Magistrate was whether or not the respondent had acted "fraudulently".

In his judgment the learned Principal Magistrate had this to say -

"At first I thought that I was bound as a matter of law to convict the man - see paragraph 1447 in the 9th Cumulative Supplement to the 36th Edition of Archbold. However, the decisions there set out were reviewed and doubted in the later case of R v Feely (1973) 57 Cr App R 312, CA - albeit a case decided under the Theft Act. Lawton, L.J., clearly expressed the view that the position under the Act and at common law was much the same. The Penal Code in Solomon Islands takes its wording from the Larceny Act 1916 which was itself based on common law. Thus I find that "fraudulently" is a question of fact for me. A borrowing of this type can be fraudulent even with an intent to repay. Here I find that it was not. Thus I acquit the defendant. Had I been bound to convict the penalty would have been nominal."

The crux of the Director's appeal is that the law to be applied in Solomon is the Larceny Act 1916, as interpreted by the Courts prior to the Theft Act 1968, and that the judgment in Feely is an interpretation of the 1968 Act and the suggestion made by Lawton, L.J., was accordingly obiter.

The decision in Feely was the judgment of a full Court of five judges and must obviously be very persuasive, if not binding on this Court.

The point of law raised is the same as that raised in Feely, namely, can it be a defence in law for a man charged with stealing and proved to have taken the money, to say that when he took the money he intended to repay it and had reasonable grounds for believing and did believe that he would be able to do so.

At p.317 of the judgment Lawton, L.J., said -

"We do not agree that Judges should define what 'dishonestly' means. This word is in common use whereas the word 'fraudulently', which was used in section 1(1) of the Larceny Act 1916, had acquired as a result of case law a special meaning."

At p.319 he then deals with the case of Williams (1953) 37 Cr App R 71, which was a judgment of Lord Goddard , C.J. He had this to say -

"This required the Court to construe the words 'fraudulently and without claim of right made in good faith' in section 1(1) of the Larceny Act 1916, which, unlike the Theft Act 1968, was never intended to alter the law but to consolidate and simplify it (see its long title)."

For our equivalent of section 1(1) of the Larceny Act 1916, see section 251(1) of the Penal Code. Unfortunately our Code does not define the word "fraudulently" as does the Queensland Criminal Code. Section 391(1) of the Queensland Code defines stealing in similar, but not the same, words as our section 251(1),but then goes on to define, in section 391(2), "fraudulently" by stating -

"(2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents, that is to say -

[(a) to (e) not relevant to this judgment]

(f) In the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend to afterwards repay the amount to the owner."

In Carter's Criminal Law of Queensland, 6th Edition, the learned author comments in this, at p.328, by saying that, "An intention to repay, which is not a defence, may be a circumstances of mitigation in relation to penalty; see R v Williams (1953); R v Cockburn (1968)." In Queens land it would seem that Feely (quoted elsewhere in a different context) has not been considered to have overruled these two cases but then, of course, in the face of the express definition in section 39(2) it could not do so.

Lord Goddard, C.J., in Williams said at p.81 -

"they knew that they had no right to take the money which they knew was not their money. The fact that they may have had a hope or expectation in the future of repaying that money is a matter which at most can go to mitigation and does not amount to a defence."

At p.320 Lawton, L.J., made the following remarks concerning Lord Goddard's judgment.

"There is some evidence that Lord Goddard, C.J., appreciated that this statement of principle in Williams might not apply to every case. His judgment was not reserved and as delivered it is likely that it contained this passage:

'It is one thing if a person with good credit and plenty of money uses somebody else's money which may be in his possession and which may have been entrusted to him or which he may have had the opportunity of taking, merely intending to use those coins instead of some of his own which he has only to go to his room or to his bank to obtain. No jury would then say that there was any intend to defraud or any fraudulent taking, but it is quite another matter if the person who takes the money is not in a position to replace it at the time but only has a hope or expectation that he will be able to do in the future. . . .'"

This passage was included in the All England Reports and the Weekly Law Reports, but omitted in the Law Reports and the Criminal Appeal Reports.

Commenting on this passage Lawton, L.J., had this to say at p.321 of the Feely -

"But it matters little why Lord Goddard revised his judgment as he did. What does matter is that he seems to have envisaged when delivering his judgment the possibility of an unauthorised taking which might not be fraudulent. Once this possibility exists, it must be for the jury to decide whether the facts proved are within it."

I would only comment at this stage that, of course, the respondent's case would not fall within Lord Goddard's expectation, as he quite clearly on the facts could not at the time replace the money and only had a hope or expectation that he might be able to do so in the future.

In Cockburn's case (1968) 52 Cr App R 134 Winn, L.J., delivered the judgment of the Court and at p.137 said -

"But the fact of the matter is this, that whereas larceny may vary very greatly indeed to the extent, one might say, of the whole heavens between grave theft and a taking which whilst technically larcenous, reveals no moral obloquy, and does no harm at all, it is nevertheless quite essential always to remember what are the elements of larceny, and what are the complete and total elements of larceny, that is to say, taking the property of another person against the will of that other person without any claim of right so to do, and with intent at the time of taking it permanently to deprive the owner of it.

If coins, half a crown, a ten shilling note a five pound note, whatever it may be, are taken in all the circumstances which I have already indicated with the intention of spending or putting away somewhere those particular coins or noted, albeit not only hoping but intending and expecting reasonably to be able to replace them with their equivalent, larceny has been committed because, with full appreciation of what is being done, the larcenous person, the person who commits the offence, has taken something which he was not entitled to take, had no claim of right to take, without the consent of the owner, and is in effect trying to force upon the owner a substitution to which the owner had not consented."

At p. 322 of Feely Lawton L.J., has commented on this passage as follows -

"We find it impossible to accept that a conviction for stealing, whether it be called larceny or theft, can reveal no moral obloquy. A man so convicted would have the difficulty in persuading his friends and neighbours that his reputation had not been gravely damaged. He would be bound to be lowered in the estimation of right thinking people."

I cannot find fault in that last passage, but the earlier words of Lawton, L.J., make it quite clear that the whole decision of Feely is an interpretation of the word "dishonestly" under the Theft Act 1968, whereas Williams and Cockburn were decided under the Larceny Act 1916 and were dealing with the word "fraudulently".

It is true that Lawton L.J., has equated the two, but he was quite clear also in stating that the Theft Act 1968 changed the law, whereas the Larceny Act 1916 did not and that, whereas the word "dishonestly" is a word in common use the word "fraudulently" had acquired a special meaning as a result of case law. This seems to conflict with his other words which, in any event, were obiter dicta and not part of the ratio decidendi.

I would, therefore, hold, that the decisions in Williams and Cockburn are correct law for the purposes of the Penal Code in Solomon Islands and that the decision in Feely has no application to our law of larceny. The position here is, in my judgment, the same as under the Criminal Code of Queensland. I would, therefore, hold that the learned Principal Magistrate should have convicted the respondent.

However, as the Director has not asked me to make any order in this case, and especially because of the particular facts of it, I will make no order.