PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Solomon Islands
You are here:  PacLII >> Databases >> High Court of Solomon Islands >> 2012 >> [2012] SBHC 19

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Regina v Leua [2012] SBHC 19; HCSI-CRC 105 of 2011 (6 February 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction


REGINA


V


JEFFERSON LEUA


Date of hearing: 7th to 9th and 12th to 14th November 2011 and 3rd February 2012.
Date of Judgment: 6th February 2012.


Mr. J. Naigulevu for the Crown.
Mr. P. Tegavota for the accused.


JUDGMENT


Apaniai, PJ:


Introduction:


  1. The accused, Jefferson Leua, is charged with 6 counts of larceny as a servant contrary to section 273(b)(i) of the Penal Code ("PC") and 3 counts of abuse of office contrary to section 96 of the PC.
  2. Count 1 alleges that the accused stole the sum of $2,000.00 which were court fines collected while the accused was on a court circuit to Taro, Choiseul Province, in July 2008.
  3. Count 2 alleges that the accused stole the sum of $2,750.00 which were also court fines collected while the accused was on a court circuit to Tulagi ("first Tulagi circuit"), Central Islands Province, sometime between 21st and 26th February 2010.
  4. Count 3 alleges that the accused had directed, in abuse of his office as a magistrate, the then court clerk (late Timothy Fanai), who was with him on the first Tulagi circuit, to hand over to him the $2,750.00, the amount which is the subject of count 2 referred to above.
  5. Count 4 alleges that on 25th March 2010 the accused stole the sum of $300.00 which were part of the total amount of court fines collected while the accused was on a court circuit to Lata, Temotu Province, in March 2010.
  6. Count 5 alleges that on 26th March 2010 the accused stole another $200.00 which were also part of the total amount of court fines collected during the same circuit to Lata in March 2010.
  7. Count 6 alleges abuse of office in relation to allegations that the accused had directed the then court typist at Lata Magistrate Court (Mary Mirdeka) to hand lent him the $300.00 and $200.00 (ie, $500.00) which are the subjects of counts 4 and 5 referred to above.
  8. Count 7 alleges that, on 31st March 2010, the accused stole the sum of $100.00 being court fines which he had collected while on a second court circuit to Tulagi ("second Tulagi circuit"), Central Islands Province, at the end of March 2010.
  9. Count 8 alleges that the accused stole a further $400.00 of the court fines which he had collected during the second Tulagi circuit at the end of March 2010.
  10. Count 9 alleges abuse of office in relation to allegations that the accused had directed the said court clerk, Timothy Fanai, who was with him on the second Tulagi circuit, to lend him the $100.00 and the $400.00 which are the subject of counts 7 and 8 referred to above.
  11. The accused has pleaded not guilty to all of the 9 counts.

Undisputed facts:


  1. It is common ground that accused was the Deputy Chief Magistrate at the Central Magistrates Court in Honiara at the time of the alleged offences and that he had made 4 court circuits to the 3 provincial centres as alleged. It is also common ground that court fines were collected during those circuits.
  2. The first court circuit was made to Taro ("Taro circuit") from 24th to 28th July 2008. The accused was the magistrate on circuit at that time and the court clerk who accompanied him on that circuit was Cain Navala. The total amount of court fines collected was approximately $4,850.00.
  3. Two court circuits were made to Tulagi in 2010. The accused was the magistrate on circuit during those two circuits and the court clerk who accompanied him on both circuits was the late Timothy Fanai. The first of those two circuits was from 22nd to 26th February 2010 and the second was from 29th March to 1st April 2010. During the first Tulagi circuit, the total amount of court fines collected was $2,750.00. At the second Tulagi circuit, the amount collected was $3,900.00.
  4. The circuit to Lata was from 22nd to 26th March 2010 ("Lata circuit"). The accused was the magistrate on circuit. The amount collected as court fines during that circuit was $3,150.00. That amount was in the custody of Marybon Mirdeka who was the typist at the Lata Magistrate Court at that time.

Disputed facts:


  1. In regards to the Taro circuit, the accused did not deny that $4,850.00 was collected as fines. What he denied was the allegation that he stole $2,000.00 of that money.
  2. As to the allegation that he stole the $2,750.00 collected as fines during the first Tulagi circuit, the accused initially denied having taken the money at all. However, in his submission filed on 31st January 2012, he conceded that he had taken the money but said that he had borrowed it and would repay it later.
  3. In respect of the $300.00 and the $200.00 which he is alleged to have stolen from the Lata court fines, the accused, again, denied having stolen the amounts. He said he had only borrowed the amounts and that, at the time he took the money, he had intended to repay the amounts.
  4. In regards to the allegation that he stole $100.00 and $400.00 from the court fines collected during the second Tulagi circuit, the accused denied having stolen the amounts. He said he had only borrowed the money and had intended to repay them later.

Law of larceny:


  1. Larceny as a servant is an offence under s. 273(b)(i) of the PC. That section says:

""Any person who being employed in the public service of Her Majesty, steals any chattel, money or valuable security belonging to or in the possession of Her Majesty or entrusted to or received or taken into possession by such person by virtue of his employment is guilty of a felony and shall be liable for imprisonment for 14 years."


  1. Hence, the elements of that offence which must be proved in this case are:

[a] the accused was employed in the public service of Her Majesty (ie, by the Solomon Island Government ('SIG'));


[b] by virtue of that employment, the accused had been entrusted with or had received or had taken into his possession a chattel, money or valuable security;


[c] the chattel, money or valuable security belonged to the SIG; and,


[d] the accused had stolen the chattel, money or valuable security.


  1. To show that the accused had stolen the chattel, money or valuable security, the Crown must further prove the following[1]:-

[a] that the amount of monies alleged to have been stolen was taken by the accused without the authority of the SIG;


[b] that the taking was fraudulent and without a claim of right made in good faith; and,


[c] that at the time of the taking, the accused had the intention to permanently deprive the SIG of the monies taken.


  1. It is worth noting at this point that in Toritelia v The Queen[2] ("Toritelia"), the Court of Appeal held that knowingly taking the money of another without his consent and with no more than a hope of being able to repay is plainly fraudulent.

Count 1 – Determination.


  1. In respect of count 1, the accused denied that he had stolen $2,000.00 as alleged. As such, the burden is on the Crown to prove beyond reasonable doubt that the accused did steal the said $2,000.00.
  2. The only evidence in support of the Crown's case came from Navala (PW5). Likewise, the only evidence in support of the accused's case came from the accused himself. So this is a case where it's Navala's words against the accused's words.
  3. Navala said that he was a court clerk at the Gizo Magistrate Court and that he had accompanied the accused on the Taro circuit in July 2008. He said it was his first time to go on circuit and had little experience as to what to do during court circuits. He said he had collected court fines during that circuit but could not remember the exact amount collected. He estimated the amount to be more than $2,000.00. He said he had given that full amount, along with the receipt book from which he had issued receipts to those who had paid fines, to the accused who took them to Honiara.
  4. For his part, the accused said he did not know the total amount of fines collected and that Navala was the one who should know the amount.
  5. A list (Exhibit "P45") was shown to Navala who said that he recognized the names in the list as those who paid fines during that circuit. He said the list was compiled by the accused. He further said that he believed the sum of $4,850.00 stated in the list must be the actual amount of fines collected.
  6. The same list was also shown to the accused who confirmed that he was the one who compiled the list. The list bore the date "12/8/08" which suggests that that must be the date on which the list was compiled.
  7. If the list was compiled on the 12/8/08, then the accused must have compiled it from information which he had with him on that date. Navala said that he had given the accused an envelope containing the total amount of fines as well as the receipt book. Navala further said that at the end of the circuit, he and the accused returned by plane from Taro where he dropped off at Nusa Tupe airport (Gizo) while the accused proceeded all the way in the same plane to Honiara with the fine monies and the receipt book. The accused, however, denied that Navala had given him the money. He said that the only amount given to him by Navala was the $300.00 which he said was money that he had borrowed and which he intended to repay.
  8. I have had the chance to observe both the accused and Navala in the witness box. The accused did not impress me as a truthful witness. I prefer the evidence of Navala. The accused admitted having compiled the list but did not say whether he compiled it from the files alone or from the receipts alone or from both. He was in a position to say from which document or documents he had compiled the list. He did not say so. I am satisfied that Navala had given both the fine monies and the receipt book to the accused and that the accused had compiled the list from both the files and the receipt book. It was Navala who had collected the fines and issued receipts to those who paid the fines. He said he recognized the names on the list as those who paid fines to him. The list stated the names of the individuals who paid the fines and the amounts paid by each of those individuals. Those amounts added together comes to $4,850.00 which is the amount stated in the list. I am satisfied that $4,850.00 is the total amount of fines collected during the Taro circuit and that this is the total amount handed by Navala, along with the receipt book, to the accused which the accused brought with him to Honiara at the end of the Taro circuit.
  9. As to the question whether Navala had lend the accused $300.00, Navala denied that the accused had asked him to borrow $300.00 or that he had given $300.00 to the accused. Again, I prefer the evidence of Navala to that of the accused. I am satisfied the accused did not ask Navala for $300.00 and Navala never gave him $300.00. I am satisfied beyond reasonable doubt that the amount taken by the accused was not $300.00 but the whole of the $4,850.00 collected as fines during the Taro circuit. Fortunately for the accused, he was only charged with stealing $2,000.00. I find the accused guilty of stealing $2,000.00 of the fine monies collected during the Taro circuit in July 2008.
  10. In his submission, the accused had put forward an alternative submission that if I find that he had taken the $2,000.00, then his taking of that money should not be treated as stealing but as borrowing and that he intended to repay that money later. Unfortunately, that was not what he said in his evidence in relation to the allegation that he stole the $2,000.00. In his evidence, he completely denied having stolen that money. I find that submission absurd and I reject it.

Counts 2, 4, 5, 7 and 8 - Determination.


  1. The accused had raised the same defence in regards to counts 2, 4, 5, 7 and 8. The defence is that, while he admitted having taken those amounts, he said that the taking could not amount to stealing because at the time he took the amounts, it was his intention to repay those amounts later.
  2. Unfortunately for the accused, that defence cannot stand in the light of the Court of Appeal decision in Toritelia in which the Court held that knowingly taking the money of another without his consent and with no more than a hope of being able to repay is plainly fraudulent and amounts to stealing.
  3. In the present case, the accused's case, at its highest, is that he had taken those monies with only a hope of repaying. He had taken the monies without the authority of the SIG who is the owner of the monies. In respect of the $500.00 taken from the Lata fines, the accused said he had asked Mirdeka. Unfortunately, Mirdeka had no authority to approve the borrowing of SIG funds. The same also applies to the amounts which the accused said he taken from the Tulagi fines. The Tulagi fine monies were the property of the SIG. Fanai had no authority to approve the borrowing of any part of those monies.
  4. It was also submitted by counsel for the accused that one of the elements of the offence of "stealing" as defined in s. 258(1) of the PC is that there must be an intention on the part of the accused at the time of taking the money to permanently deprive the SIG of the monies taken. Counsel submits that at the time of taking the monies, the accused had the intention to repay later. As such, counsel submits, this element has not been proved and therefore the charges of larceny should be dismissed.
  5. I do not accept that submission. The state of mind of a person cannot be proved as a fact in the same way that most other facts can be proved. A state of mind can only be inferred from facts which have been proved[3].
  6. In regards to this issue, the Crown argued that the accused had no right to take the monies because the Magistrate Courts Act did not authorise magistrates to collect fines. The Crown submitted that even if s. 73 of the Magistrate Courts Act authorizes magistrates to collect fines, such authorization was conditional upon there being no court clerk to collect the fines. In the present case, said the Crown, court clerks were present so the fact that the accused went on to take these monies when these court clerks were available was evidence that the accused had the intention to permanently deprive the SIG of the monies.
  7. I do not think it is necessary to dwell on the issue as to whether or not the accused had authority under the Magistrate Courts Act. I have dealt with that issue in the case of R v Samani[4]. That question does not arise in this case. The fact of the matter is that these were monies which were collected by these court clerks Navala, Mirdeka and Fanai, as court fines. They were monies that belonged to the SIG. The accused was a public officer and he stole those monies. It matters not whether he took the monies from the convicted persons themselves or from the court clerks who collected the monies from the convicted persons. Either way, it was money that came into his possession by virtue of his employment and so he would be guilty of the offence of larceny if he stole them.
  8. Whether at the time he took the money he intended to repay them is an issue which can only be inferred from the circumstances in which the monies were taken as shown by the evidence produced in this case.
  9. In regards to the $2,750.00 taken during the first Tulagi circuit, the accused had initially denied having taken the money. During his evidence, he changed his story to say that he had received the money and had used $200.00 of it to pay for his nephew's compensation. He did not say what happened to the remainder after using the $200.00. In any event, he had had the chance to handover the amount to Rufina upon his arrival in Honiara from Tulagi or, if he had borrowed the money because it was a weekend and he was late for the banks, then at least, he should have repaid the amount the following Monday when the banks were open. He did not do so. The fact is, he has not yet repaid the amount even up to now. All these conduct do not support the claim that the accused had the intention to repay the money at the time he took them. I reject that submission.
  10. In regards to the Lata monies, the accused had promised Mirdeka that he would refund the $500.00 on his return to Honiara. He even took down Mirdeka's bank account and mobile number for that purpose. He never repaid the monies to Mirdeka as promised. Until now, he is yet to repay the $500.00. Again, these evidence clearly show that at the time the accused took the monies from Mirdeka he had no intention of repaying them.
  11. In regards to the $400.00 and the $100.00 which he is alleged to have taken from Fanai during the second Tulagi circuit, it has been proved that the accused had not yet repaid those amounts, or any part of those amounts. It has been more than 20 months since he had taken those monies and still he has not yet repaid any part of those monies. If he had had the intention to repay the monies, he would have done that long ago. He had not done so.
  12. I am satisfied beyond reasonable doubt that the accused had taken the $2,750.00 fine monies collected during the first Tulagi circuit and the $500.00 he took from the fine monies collected during the Lata circuit, as well as the $500.00 he took from the fine monies collected during the second Tulagi circuit, knowing full well, at the time of the taking, that he would not be able to repay the monies or, at best, with only a faint hope that he would be able repay. He is therefore guilty of stealing those monies.
  13. Accordingly, I find the accused guilty of counts 2, 4, 5, 7 and 8 of the indictment.

Abuse of office.


  1. I will now deal with the abuse of office charges in counts 3, 6 and 9.
  2. Count 3 is based on the same actus which gave rise to the charge in count 2, that is, the taking from Fanai of the $2,750.00 collected as fines during the first Tulagi circuit.
  3. Count 6 is based on the same actus which gave rise to the charges in counts 4 and 5, that is, the taking of $300.00 and the $200.00 of the amount fines collected during the Lata circuit in March 2010.
  4. Similarly, count 9 is based on the same actus which gave rise to the charges in counts 7 and 8, that is, the taking of $100.00 and $400.00 of the amount of fines collected during the second Tulagi circuit.
  5. The Crown submitted that these charges are not alternative charges to the larceny charges. They are additional charges based on the same actus which gave rise to the larceny charges.
  6. There is no dispute that the same actus can give rise to two separate offences. I must say that I do not see a case of abuse of office in the present case. I see the complete acts of stealing. In R v Llewellyn Jones[5], Lord Widgery CJ gave an example of a situation which will give rise to abuse of office. He said:

"If the Registrar of a county court, when exercising his power to order payment out of court money held on behalf of a beneficiary, were to make an order in expectation of some personal benefit which he hoped to obtain and in circumstances where, had it not been for the personal benefit, he would not have made the order, that would be an example of misconduct in a public office."


  1. In that example, the Registrar did what he did in expectation of some personal benefit. However, that is not the situation in the present case. The accused did not take the $2,750.00 from Fanai or the $500.00 from Mirdeka or, again, the further $500.00 from Fanai because he wanted to cause loss or harm to anyone or because he had expected some personal benefit from anyone if he did so. In taking those monies, his intention was to misappropriate them. That is not abuse of office. It is outright stealing.
  2. The offence of abuse of office requires the Crown to prove beyond reasonable doubt that the accused had committed an arbitrary act in abuse of his office and that in doing so he had prejudiced someone's rights. The questions to ask are what was the state of mind of the accused when he did what he did? Did he do what he did maliciously with intention of causing harm or loss to another person or with intention of conferring some advantage or benefit to himself?[6]
  3. As I indicated earlier, the accused's intention in taking the money from Fanai and Mirdeka, was not to cause harm or loss to the SIG or to confer some advantage or benefit to himself. His intention was to steal the money. The loss by the SIG of the stolen money and the fact that the accused had benefitted from the use of the stolen money were consequences of the accused's conduct, but they were not the primary reasons for the accused's taking of the money. As such, I must find the accused not guilty of counts 3, 6 and 9.

Verdict:


  1. In summary, I find the accused guilty of larceny as charged in counts 1, 2, 4, 5, 7 and 8 of the indictment. However, in respect of the offences of abuse of office as charged in counts 3, 6 and 9, I find the accused not guilty and he is accordingly acquitted of those charges.

THE COURT


JAMES APANIAI
PUISNE JUDGE

[1] See definition of theft in section 258(1) of the Penal Code.
[2] [1987] SBCA2 / [1987] SILR 4.
[3] See R v Cunningham [1983] 3 WLR 223.
[4] CRC No. 104 of 2009 (Unreported).
[5] (1967) 51 Cr. App. R 4.
[6] R v Samani CRC No. 104 of 2011; see also Naiveli v The State [1994] FJCA 29 (Paclii).

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2012/19.html