Taro v R [2023] SBHC 141; HCSI-CRC 488 of 2016 (1 September 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Taro v R
Citation:
Date of decision:	1 September 2023
Parties:	Florence Taro v Rex
Date of hearing:
Court file number(s):	488 of 2016
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	1. The appeal is upheld, 2. The conviction of the Appellant on the offence of Conviction is dismissed, 3. Appellant is acquitted on the offence of conversion, 4. No further
Representation:
	Lawry H for the Appellant Kelesi for the Crown
Catchwords:
Words and phrases:
Legislation cited:	Penal Code 278 (1) (c) (ii),S 269, Criminal Procedure Code [cap 7] S 159
Cases cited:	Toritelia v Regina [1987] SBCA 1

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 488 of 2016

FLORENCE TARO

V

REX

Date of Ruling: 1 September 2023

Lawry H for the Appellant
Kelesi A for the Crown

RULING ON APPEAL

Maina PJ:

1. The appellant Florence Taro appealed against the conviction on the offence of conversion contrary to section 278 (1) (c) (ii) of the Penal Code.
2. The Appellant was charged on two counts of the charge of larceny from the dwelling house contrary to section 269 of the Penal Code. At the trail in the Magistrate Court, she was acquitted on Count 1 but on Count 2, he found the appellant guilty of conversion and convicted her on the offence.
3. Counsel Brook who filed the appeal did not appear at the hearing however, the then Public Solicitor (Lawry H) took courage and appeared for the appellant.
4. Counsel Brook who filed the appeal did not appear at the hearing however, the then Public Solicitor (Lawry H) took courage and appeared for the appellant.

Brief Background

5. Mr. Matthew Taro (husband of the appellant) placed in the bedroom of their house a sum of $200,000.00. The money belongs to the husband’s tribe. The husband then went off to New Zealand and on returned, the husband found that part of the money was missing. The appellant was allegedly took possession of the money and took part of the money.

The Laws

6. Section 159 of the Criminal Procedure Code (CPC) Cap 7 gives power to the court to convict a person on lesser offence when the offence proved is included in offence charged.
7. The offence of conversion under section 287 (1) (c) (ii) of the Penal Code:
   • “Conversion
   • 278.-(1) Any person who -
   • (a)................,.; or
   • (b) .................; or
   • (c) (i) being entrusted either solely or jointly with any other person with any property in order that he may retain in safe custody or apply, pay or deliver, for any purpose or to any person, the property or any part thereof, fraudulently converts to his own use or benefit, or the use or benefit of any other person, the property or any part thereof or any proceeds thereof; or
   • (ii) having either solely or jointly with any other person received any property for or on account of any other person, fraudulently converts to his own use or benefit, or the use or benefit of any other person, the property or any part thereof or any proceeds thereof”,

The issue

8. Whether there were evidences to prove the elements of the (lesser) offence of Conversion adduced at the trail that enabled the presiding magistrate to convict the appellant on the offence.

The Appellant Case

9. The Counsel for the Appellant made a submission that it seems undisputed the appellant is the tenant of the house, not her husband. The husband seems to have received $200,000.00 from his tribe.
10. In the appeal, it is sorely with count 2 and the relevance is that the husband of the appellant left the house and went to New Zealand. He was there for some time or at least and the magistrate found that he was out for two to three weeks.
11. Appellant counsel was drawing from the finding of the magistrate that the money for the tribe was left in the consequences and lawfully in the possession of the appellant at that stage, and anything abandon by the husband. It was there and the appellant used it as bargaining chip to persuade the husband to disclose of the woman with whom he had martial affairs.
12. Appellant counsel submitted that there cannot be criminal in action otherwise, it is a civil matter between them. .
13. The magistrate was right when he found the charge of larceny from a dwelling house was not succeed. It is so because the appellant was the lawful tenant of the dwelling house. However, he concluded and convicted the appellant on the offence of conversion. The magistrate had erred because there are elements of conversion that do not form part of larceny from the dwelling house.
14. Counsel argued that the provision of section 278 (1) (c) (ii) of the Penal Code, which the magistrate found proved has key elements and one is that a person must be entrusted or hold money solely or jointly on account or because of someone else.
15. For this case, there is no evidence at all. The heart of conversion really is a breach of trust and with the money. Appellant did not with the money from the tribe of her husband. She had not received any money on behalf of the tribe of the husband either solely or jointly with any person.
16. Counsel submitted that on that basis, the appellant cannot be convicted on the offence of conversion.
17. Further, the Appellant counsel submitted that it is accepted that the magistrate is entitle to find a defendant guilty on a charge that is an un-included charge of a more serious before the elements that have been proved. In the similar way, the provision under section 159 of the CPC provide that when a person is charged with an offence and the facts are proved which reduced to lesser offence. With this case there is no proved of any breach of trust and it submitted that the element of conversion were not there or adduced in evidence.

Response by the Crown

18. Counsel Kelesi for the Crown in his submission stated that the following evidence was adduced at the magistrate court on the charge of Larceny from the dwelling house. However but the presiding magistrate did not convict the appellant on the charge. However, with these evidences he convicted the appellant on the lesser offence of conversion. The evidences are:
    • That the money allegedly stolen does not belong to the appellant,
    • That the money was entrusted in Matthew Taro the husband of the appellant
    • That the money was kept in the bedroom of the house where both complainant Matthew Taro and his wife (appellant)lived,
    • The appellant took away $180,000.00 of the Irawaru’s tribe money without the consent of either the tribe or Matthew Taro,
    • That the appellant took the money on the day when Matthew Taro was entrusted who was entrusted with the safe keeping of the money when he was not overseas but in Honiara,
    • That the appellant took the money and demanded the husband to disclose to her the woman he was alleged to have extra martial affairs with;
    • That the appellant later returned $90,000.00 of the money she took but the rest she did not return or repay it to date.
19. Counsel Kelesi submitted that the magistrate had erred when he acquitted the appellant on the charge of Larceny from dwelling house. Counsel referred to the Court of Appeal case of Toritelia v Regina^[1] as the basis of his argument.
20. Counsel also referred to the magistrate’s discussion on paragraphs 8 and 9 in his judgment about section 269 of the Penal Code and the consideration of the menace or threat to complete the elements. Counsel Kelesi said that they are irrelevant consideration in the charge of Larceny in the dwelling house.
21. Counsel Kelesi seeks that the learned magistrate’s order which he term as acquittal be set aside further the accused to be convicted on the charge of larceny from a dwelling.

Analysis

22. The magistrate discussed the evidences when he acquitted the appellant on count 1 and the conviction of the appellant on the lesser offence of conversion.
23. He used the same or similar evidence or reasons to convict the appellant on count 2 when he concluded in his judgment:
    • “I’m satisfied that the accused has taken the money fraudulently and with the intention to permanently deprive the Irawaru tribe of their money. Nevertheless, for reasons that I have already explained I cannot convict her of the offence of stealing in a dwelling house. Instead, I find her guilty of conversion contrary to section 278 (c) (ii) and convict her of that offence pursuant to section 259 of the Criminal Procedure Code (probably a misprint or quote of section 159).
24. There is no reference or discussions in the judgment on the elements of conversion to show that the appellant was guilty of the lesser offence of conversion
25. The Crown counsel in the response or the submission refers the evidences the magistrate had discussed. In fact, it was with these evidences the magistrate had used to rule that the accused was the owner and occupier of the dwelling house and he acquitted the appellant on count1.
26. The evidences did not either disclosed that the money left in the bedroom was solely or jointly to the care of the appellant than that the money was entrusted in Matthew Taro who is the husband of the appellant.
27. The Crown Counsel agreed with the error made by the learned magistrate when he convicted the appellant on the offence conversion. However, the counsel in his submission asked this court be set aside that conviction on the conversion and seeks an order of conviction on the original charge of larceny from a dwelling house.
28. The Crown base his argument on the case Toritelia v Regina^[2] and other case laws. It is noted but the determining factor in the offence of larceny from a dwelling house is stealing with intention to deprive the person who owns the money or properties. It is the stealing and the normal definition of steal applies.
29. With the above, the Crown appeared or did not adequately response to the grounds of appeal by the appellant.
30. On that basis, it is sufficient to say that the orders sought by the Crown though relate to this case it does not address the appeal by the Appellant to the conviction on the offence of conversion. There is either no appeal by the Crown on the acquittal and or against conviction by the magistrate on the lesser offence. Let alone, it is not the subject on the appeal.
31. The appeal is against the conviction and that the elements of conversion was not proved in the evidences or absence before the magistrate court.
32. The Appellant do not dispute the power of the court under section 159 of the CPC on conviction of lesser offence. However, to exercise that power the court must satisfy that the elements of the lesser offence is or a combination of some only of which constitutes a lesser offence is proved.
33. As clearly stated by the Appellant Counsel, one of the element in the conversion is entrust or hold money solely or jointly on account or other ways. There was no such or involved the appellant and although the money was in their bedroom, there is no evidence to show that the husband had informed the appellant that the money was in the bedroom.
34. The offence of Conversion is taking or using the money or properties under the care or including the person vested the care or care on their behalf. It is so and entrust to hold can be solely or jointly is an element of the offence. This element of money entrust is essentially important on the charge conversion but was not adduced in the evidences before the presiding magistrate and to hold the appellant accountable or guilty of conversion.
35. With the appeal, the element of money entrust to the appellant is not proved or not adduced by the Crown at the hearing at the Magistrate Court and the learned magistrate is erred in law to convict the appellant on the offence of conversion, therefore the appeal is upheld.

Order of the Court

1. The appeal is upheld,
2. The conviction of the Appellant on the offence of Conviction is dismissed,
3. Appellant is acquitted on the offence of conversion,
4. No further

THE COURT
Hon Justice Leonard R. Maina
Puisne Judge

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^[1] _{[1987] SBCA 1; [1989] LRC 647 (30 March 1987}
^[2] above