PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Solomon Islands
You are here:  PacLII >> Databases >> High Court of Solomon Islands >> 2023 >> [2023] SBHC 169

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

R v Manetoali [2023] SBHC 169; HCSI-CRC 83 of 2020 (31 May 2023)

HIGH COURT OF SOLOMON ISLANDS


Case name:
R v Manetoali


Citation:


Date of decision:
31 May 2023


Parties:
Rex v Samuel Manetoali


Date of hearing:
26 November 2020


Court file number(s):
83 of 2020


Jurisdiction:
Criminal


Place of delivery:



Judge(s):
Palmer; CJ


On appeal from:


Order:
1. Dismiss appeal against the orders of the Magistrate in respect of counts 1, 10, 11, 13, 15, 17 and 18, and count 2;
2. Uphold appeal against the orders of the Magistrate in respect of counts 3, 4, 5, 6, 7, 8, 9, 12, 14, and 16;
3. Quash orders of the Magistrate in respect of counts 3, 4, 5, 6, 7, 8, 9, 12, 14, and 16;
4. Direct that the matter in respect of counts 3, 4, 5, 6, 7, 8, 9, 12, 14, and 16, be remitted back to the Magistrates’ Court before a different Magistrate for retrial; and
5. No order for costs.


Representation:
Mrs O. Ratu-Manu for the Crown/ Appellant
Mr L. Kwaiga for the Respondent


Catchwords:



Words and phrases:


Legislation cited:
Penal Code [cap 26] S 278 (1) (c) (ii)
Constituency Development Fund Act 2013 S 3, S 4 (2), S 5 (1)
Criminal Procedure Code S 197 [cap 7]



Cases cited:
R v Boyce, Regina v Reqeo [1998] SBHC 69, Toritelia v Regina [1987] SBCA 1,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION


Criminal Case No. 83 of 2020


REX


V


SAMUEL MANETOALI


Date of Hearing: 26 November 2020
Date of Judgment: 31 May 2023


Mrs. O Ratu-Manu for the Crown/Appellant
Mr. L. Kwaiga for the Respondent


Palmer CJ

  1. This is an appeal against the order of acquittal of the Magistrates’ Court issued on 27th August 2019, in which it found in favour of a submission of no case to answer by the defendant (Respondent) in this appeal.
  2. The Respondent had been charged with 18 counts of conversion contrary to section 278 (1) (c) (ii) of the Penal Code [cap. 26].
  3. The Respondent pleaded not guilty to all the charges and a trial has been held.
  4. At the conclusion of trial, a submission of no case to answer was made, which found in favour of the Respondent, the charges were dismissed and an order of acquittal issued.
  5. The Crown appeals against that finding on the following grounds:
  6. The Appellant submits that the order of the Magistrate be set aside and the matter remitted back to the Magistrates’ Court before a different Magistrate for retrial and any other orders as may be deemed appropriate by the Court.

Brief Background Facts

  1. The Respondent is the current elected Member of Parliament for the Gao/Bugotu Constituency ("GBC") in the Isabel Province. He was re-elected as the Member of Parliament (“MP”) for that Constituency in 2014. In the last National General Elections in 2019, he retained his seat.
  2. The allegations relate to the payment of a sum of $100,000 on or about the 24th December 2014 into the Gao Bugotu Constituency Account with the ANZ Bank.
  3. There is no dispute that this sum of money was part of the $300,000 which the Republic of China (“ROC”) provided towards the Constituency Development Fund (“CDF”). All the Members of Parliament received this sum of money on behalf of their respective constituencies in December 2014.

THE SOURCE AND PURPOSE OF THE FUNDS.

  1. It is important to note from the outset that there are a number of documents, which should assist the court in determining the issue on the use and purpose of the funds, which is the subject in this appeal. These consist primarily of two documents, being the legislation, the Constituency Development Funds Act 2013, (“the CDF Act”) and the Ministry of Rural Development, Constituency Development Funds, Operations Manual (Guidelines & Processes)[1] (“CDF Operations Manual”), which I will deal with more in detail in this judgment.
  2. There is also reference to other documents tendered in court, being the Brief Background Information report from the Ministry of Rural Development provided in respect of the release of the sum of $100,000.00 towards all 50 Constituencies. This report is marked as “Exhibit PEX 2”.
  3. The report states inter alia as follows:
At paragraph 4 of page 1 of the report, it states as follows:
  1. This document is relevant in this case as far as it seeks to reiterate the importance or significance in the Respondent’s case of on-going socio-economic needs of constituents and the development of their constituencies.
  2. Another document referred to is an extract from Cabinet on the Management Guidelines for the Disbursement of Constituency Development Fund [CDF] for this Year 2014, and marked as “Exhibit PEX 3”. The significance of this document is in its endorsement of the Management Guidelines and for the Ministry of Rural Development to ensure the Guidelines are adhered to, in the disbursement of the CDFs in the Year 2014. Secondly is its approval of the Managements Guidelines for the disbursement of the Constituency Development Funds for the Year 2014.
  3. The fourth important document referred to is the “Expenditure Summary (or Acquittal report) for the $100,000 for the Gao/Bugotu Constituency of 24th December 2014”. This is marked as “Exhibit PEX 4”.
  4. There is no dispute about the source, purpose and use of the funds. These are more clearly set out under the CDF Act, which provides guidelines in its use in the country. This issue of the source, purpose and object of the funds, forms a crucial part of the Prosecution's case.
  5. For instance, section 3 of the CDF Act, sets out the objects of the Act as follows:
  6. The object of the Act sets out in plain and simple terms that the funds are to be disbursed in a responsible and accountable manner.
  7. At section 4(2), the purpose for the funds are set out as follows:
  8. The primary objective, for which the funds are to be used is for development purposes for the constituency.
  9. At section 5(1), it again reiterates the purpose for which the funds should be used for:
  10. It is not in dispute therefore, that the primary purpose, for which the funds are to be disbursed, is for developmental purposes, for income generating projects or community projects of the constituency to individuals, groups or communities.
  11. To assist with the approval and disbursement process, meticulous and detailed guidelines were provided. These have been generously provided to assist Members of Parliament by the Ministry of Rural Development in the publication of the CDF Operations Manual, which set out in a fairly comprehensive manner how the funds may be utilised.
  12. In part, this is to assist with accounting, transparency and integrity requirements purposely imposed on the use of the funds.
  13. In the “Introduction” to the CDF Operations Manual, for instance it states:
    1. To provide the means by which the disadvantage, remote and inadequately served communities, groups, families and individuals can have access to rural development funds to help them participate in revenue generating projects.
    2. To assist individuals, families and community based organizations to participate in socio-economic developments to help alleviate poverty within the rural areas, and
    3. To help address the problem of unemployment within the constituencies by involving people into meaningful income generating projects.” (Emphasis added).
  14. The CDF Operations Manual further provides inter alia, for:
  15. The manual also provides for certification[6] of projects for funding by the Secretary of the Constituency Development Committee, being the Constituency Development Officer (“CDO”), and a requirement that the Member of Parliament for the constituency to endorse[7] any such application.
  16. There is also requirement for the setup of a Bank Account[8] with identified signatories[9], one of whom is the Member of Parliament. There is also provision for disbursement of funds and procurement processes[10].
  17. At paragraphs 79 – 83, her Worship Ms. Taeburi (Principal Magistrate), states:
  18. She went further to state at paragraphs 85 – 89 that the provider of funds, the Government of the Republic of China had also provided an acquittal report template marked as “DEX2” to assist with the usage and acquittal reporting of the funds.
    1. Medical;
    2. Education;
    1. Sports;
    1. Youth;
    2. Women;
    3. Denomination;
    4. Infrastructure;
    5. General;
    6. Administration.
  19. The manual and the evidence of Selina Boso, (PW1) merely reiterates or confirms, what the purposes for which the funds are to be used for, being social – economic development activities or meaningful income generating projects.

The law on the submission of no case.

  1. This is set out in section 197 of the Criminal Procedure Code (cap. 7) as follows:
  2. The test as correctly set out by her Worship in her Ruling is “whether there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty.”[11]
  3. If there is evidence capable of establishing whether directly or inferentially, every element of the offence charged beyond reasonable doubt, there is a case to answer.

Conversion, Section 278(1) (c) (ii) of the Penal Code [cap. 26].

  1. Section 278(1)(c)(ii) provides as follows:
  2. The elements of the offence are:

The issue(s) for determination.

  1. There is no issue arising in terms of elements (i) – (iii). The defendant is the Respondent who had received the sum of $100,000, being part of the Constituency Development Funds for the Gao/ Bugotu Constituency, for and on behalf of the members of his constituency, who would be applying for income generating projects for socio-economic activities.
  2. The elements in issue in this case in the court below relate to the questions of the fraudulent conversion of the moneys received to his own use or benefit, or to the use or benefit of any other person.
  3. So what is fraudulent conversion? In R. v. Boyce[12], Hallet J. described the elements of the offence as follows:
  4. The first element in this appeal is not in dispute. It is not in dispute that the money was entrusted to the Respondent for a particular purpose, namely to deliver to the Beneficiaries, in this case, people of the Gao/ Bugotu Constituency, funding to support income generating projects, and projects for socio-economic development activities.
  5. In terms of the second element, there seems to be dispute as to the question whether he used it for some other purpose. There are two ways this element can be proved, if he used it for his own use or benefit, or for the use and benefit of others. The proof of the use of the money in either of those ways will suffice, bearing in mind that the burden of proving this lies with the Crown from the start.
  6. Then there is the third element that the misuse of the money was fraudulent and dishonest. In the case of Regina v. Reqeo[13], his Lordship Lungole-Awich J. identified fraudulent intent as the crucial element in the offence of conversion:
  7. So the issue in this case in regards to the element of fraudulent conversion as also set out in the Court of Appeal case in Toritelia v. The Queen[14], is whether it has been established that the Respondent intended dishonestly to prejudice or take the risk of prejudicing the right of the Members of his constituency, knowing that he had no right to do so. The Crown bears the burden of proof in regards to this.
  8. The 18 counts that he had been charged with, can be divided into three categories:
  9. The first category of offences is comprised of six charges, counts 1, 10, 11, 13, 15 and 17. The second category relates to 11 charges, counts 2, 3, 4, 5, 6, 7, 8, 9, 12, 14, and 16, and the third category is in respect of count 18.
  10. The Crown’s case is premised on the submission that the sum of $100,000 that was paid as part of the Constituency Development Fund was used to fund a Christmas party on the 25th December 2014. They say that a Christmas party is not for social development purposes. They also submit that the payments given were for non-development purposes as measured against the standard of the CDF Operations Manual and therefore fell afoul of the legislation.
  11. The Respondent’s case on the other hand is that the learned Magistrate was entitled to find that there was insufficient evidence as all the elements of the offence of fraudulent conversion had not been proven to the required standard.

APPEAL GROUNDS 1 - 4.

  1. Appeal Grounds 1 – 4 are all interrelated and so will be dealt with together in this appeal and discussions.
  2. The main document relied on in this appeal by the Crown is the “Exhibit PEX 1”, the CDF Operations Manual. This manual is fairly comprehensive and sets out in a plain and transparent manner how such funds received are to be used, including the purpose the funds are to be used for, “being for socio-economic development projects and meaningful income generating projects”.
  3. As an important document, it sets out the purpose and object of the funds. Its relevance and significance, lies in the use and purpose to which the funds are to be applied. For purposes of accountability, this is all the more important during acquittal.
  4. The document sets out in detail for instance, processes for retirement of funds[15], enquiries[16], and reporting[17]. At Rule 3.0 it sets out the processes on how a project application can be made.
  5. These are all relevant and important to assist all parties abide by the requirements for which the funds are set aside for. While these may be described as “discretionary funds”, the exercise of such discretion is expressly governed by rules, processes and procedures. These are not free money to be used as a Member of Parliament pleases or chooses. His or her discretion is carefully and deliberately regulated.
  6. The use or expenditure of such funds therefore, should be carefully assessed, screened and vetted against those rules/ guidelines as the standard, before approval and release. The people (members of the Constituency) are entitled to question the use of the funds if not directly related to those guidelines.
  7. The primary purpose of-course being for socio-economic development projects or activities and or meaningful income generating projects. The use of such funds therefore should fall within those purposes.
  8. In order to determine however whether the orders of the learned Magistrate should be interfered with, each of the 18 counts and the elements required to be proved, needed to be considered in some detail. I will attend to that herewith.

THE FIRST (1ST) CATEGORY OF OFFENCES, BEING COUNTS 1, 10, 11, 13, 15 AND 17, CONVERSION FOR HIS OWN USE OR BENEFIT.
COUNT 1.

  1. This is the first of six counts under this category. The allegation relates to the fraudulent conversion of the sum of $5,750.00 on the 24th December 2014 by the Respondent to his own use or benefit.
  2. In the acquittal report (marked as Exhibit PEX 4)[18], it comes under the sector marked for “Administration”, the Recipient is marked as the "GBC Office”, the payment is described as “Constituency Consultation” and the location is listed at “GBC”. It is not clear what is meant by describing this location as “GBC”.
  3. Oral evidence of this payment was given by witness PW3, Jimmy Dikamana, one of the key officers in the management and control of the use of the funds, and known as the Constituency Development Officer (“CDO”) for the Gao/Bugotu Constituency.
  4. At page 61, he gave evidence of his role inter alia as a Project Officer for the Constituency, in dealing with members of the Constituency interested in making applications for project proposals and funding etc., before submitting to the Ministry for Rural Development and Indigenous Affairs for inter alia acquittal of the funds.
  5. He gave evidence of collecting the cheque for the sum of $100,000 on the eve of Christmas day on the 24th December 2014, rushing to cash it at the bank as the next days being the 25th and 26th December 2014 were public holidays and delivering the cash to the Respondent at his residence at Lengakiki, at about 5:00 pm in the evening.
  6. On the next day, which is Christmas day, a Christmas party was hosted at the Respondent’s residence.
  7. At page 66 of the Appeal Book, he was asked about this payment in the Payment Voucher (PV) of 2014 – ROC – 1(A) – 20, which was a payment for $5,750 towards the Gao/Bugotu Constituency Office and described as Constituency Consultations in Honiara. This is the allegation in respect of count 1.
  8. In his answer as recorded in the transcripts regarding this payment as set out in the PV, it reads: “Received by H/P Hotel Dated 24/12/2014 for outstanding debts.”
  9. Earlier on at page 65 of the Appeal Book a question was asked regarding another payment not included in the charges, of $8,982.60. In the answer by this witness as recorded, it read: “Receipt H/P/H No: 5123 being for function of goods $8,982.60 on 11/9/14.”
  10. He was then asked “.... Correct to say payment made b4 funds received?” he answered “Yes.” He was then asked, “Why was it placed in the same Acquittal rpt?”, his answer “To cover cost made at X-Mas party.”
  11. This explanation is almost similar to the response given for the acquittal towards the sum of $5,750. According to the explanation provided by PW3, the details in the PV showed that the money was paid to the Heritage Park Hotel (recipient) on the 24 December 2014 for outstanding debts.
  12. It would appear therefore that while the payment was recorded in the acquittal report as for "Constituency Consultation" and the recipient recorded as "GBC Office", the payment was recorded in the payment voucher as being made to the HP Hotel for outstanding debts. It would seem that a discrepancy exists regarding this payment.
  13. However, the crucial element of fraudulent conversion for his own use or benefit needed to be established in relation to this allegation. Is there evidence of fraudulent conversion on his part, that this sum of money was used for his own purpose or benefit?
  14. While it is not in dispute that a Christmas party was hosted on Christmas day, has it been shown/ proven to the requisite standard, that this sum was dishonestly used by the Respondent for his own purpose or benefit to the prejudice or detriment of members of his constituency? This is the critical element that prosecution is required to prove on the evidence as well. Did he use this amount to spend towards the Christmas party? And if so, was it fraudulent and dishonest?
  15. Prosecution I understand seek to make that connection and to argue that the hosting of the Christmas party was contrary to the requirements of the CDF Operations Manual.
  16. On the evidence adduced, this is where the nexus seems to fail. It is not enough to prove that the payments entered into the payment vouchers may have been falsified or a cover-up, prosecution should go on to prove that the money was dishonestly used by the Respondent to the prejudice of the rights of the Gao/ Bugotu Constituency and that the hosting of the Christmas party was in itself contrary to the requirements of the Manual or guidelines provided; surmise or suspicion alone would not suffice.
  17. This is where the link fails. There is no evidence or insufficient evidence to show/prove that this sum of money was dishonestly converted by the Respondent and used to his own purpose and benefit. Accordingly, the learned Magistrate was entitled to find in regards to this count that the evidence adduced was not sufficient to require the Respondent to be put to his defence on this charge.

COUNT 10.

  1. This is the second set of payment in the allegation against the Respondent.
  2. The allegation relates to the fraudulent conversion of the sum of $4,400 paid on the 2nd of January 2015 to his own use or benefit.
  3. In the acquittal report, it is recorded under the “Denomination” sector, the Recipient is listed as “Late Linette Keni”, the payment is described as for “Funeral Expenses” and location is listed as “Tanatha”.
  4. In the evidence[19] of PW3, he confirms the details of the payment in the payment voucher as being made on the 2nd January 2015 for “Late Linette Keni”, for “Funeral expenses (40 G Petrol), which I assume meant 40 gallons of petrol. It appears to have been received by Paul Wale.
  5. Again, the crucial element of fraudulent and dishonest use of the money for his own use or benefit need to be established in relation to this allegation. Is there evidence of fraudulent conversion on his part?
  6. On the evidence adduced, this is where the nexus also fails to be made out. There is no evidence or insufficient evidence to show/prove that this sum of money was fraudulently and dishonestly misused by the Respondent.
  7. For the same reasons given above, I am satisfied the learned Magistrate was entitled to find that the Respondent does not have a case to answer in respect of the allegation raised.

COUNT 11.

  1. This count is similar to count 10. The allegations relate to the fraudulent conversion by the Respondent of the sum of $2,200 on the 3rd January 2015 to his own use or benefit.
  2. In the acquittal report, it comes under the “Denomination” sector, the Recipient is listed as “Late Basil Kikolo”, the payment is described for “Funeral Expenses” and location is listed as “Sepi”.
  3. In the evidence[20] of PW3, he confirms the details of the payment in the payment voucher as being made on the 3rd January 2015, for “Late Basil Kikolo” and for “Funeral expenses (20 gallons Petrol)”. It is also recorded as being received by Paul Wale.
  4. For the same reasons given above, the learned Magistrate was entitled to find that there is insufficient evidence to put the Respondent to his defence.

COUNT 13.

  1. This allegation relates to the fraudulent conversion by the Respondent of the sum of $2,795 paid on the 4th January 2015 for his own use or benefit.
  2. In the acquittal report, it is listed under the sector for “Administration”, with the Recipient listed as “Wings Mini Market”, the payment described as for “GBC Consultancy” and under “Location” listed as “GBC”.
  3. In his evidence, PW3 confirms the details of the payment in the payment voucher as being made on the 4th January 2015, for consultation meeting in the sum of $2,795 and was received by Wings Mini Market.
  4. Again for the same reasons given above, the learned Magistrate was entitled to find that there is insufficient evidence to put the Respondent to his defence.

COUNT 15.

  1. This allegation relates to the fraudulent conversion by the Respondent of the sum of $6,874.90 paid on the 4th January 2015, to his own use or benefit.
  2. In the acquittal report, it is listed under the sector for “Administration”, with the Recipient listed as “GBC Office”, the payment is described as for “Constituency” and under “Location” listed as “GBC”.
  3. In his evidence[21], PW3 confirms the details of the payment in the payment voucher as being made on the 4th January 2015 for “Const/ Consultation during XMAS” (meant Constituency/Consultations during the Christmas period). He says this payment was received by the Heritage Park Hotel with receipt no. 38173. It is not clear what details were set out in that receipt including the date of payment and for what. He says that he was not aware of the payment until he received the PV.
  4. Again, the crucial element of fraudulent conversion for his own use or benefit need to be established in relation to this allegation. Is there evidence of fraudulent conversion on his part, that this sum of money was used for his own purpose or benefit?
  5. This is also where the nexus or link fails. It is not enough to prove that the payments may have been falsified or a covered up, prosecution is required to go on to prove that the money was used by the Respondent for his own use or benefit.
  6. For the same reasons given above, I find that the learned Magistrate was entitled to find that the Respondent does not have a case to answer in respect of the allegation raised.

COUNT 17.

  1. This allegation relates to the fraudulent conversion by the Respondent of the sum of $380 on the 4th January 2015, to his own use or benefit.
  2. In the acquittal report, it is listed as for “Administration”, the Recipient is listed as “GBC Office”, the payment is described as for “Administration Costs” and under “Location” listed as “GBC”. Note, the amount is $380.90.
  3. In his evidence, PW3 confirms the details of the payment in the payment voucher as being made on the 4th January 2015 for $380.90. He states in his evidence that the payment is “Not authorised, not approved”.
  4. When asked “Were u aware of pymt?” He responded, “Not aware.” He continued, “This amount was raised just to balance the amount I cannot catch u w/.”
  5. He was then asked next, “All these payments made?” and his answer was “Mil odea – mi present lo waka”, (meant he was at work during that time). He then continued, “Office pymts, SM (meant Samuel Manetoali) doim lo pown (own) private area blo hem. Taem Manetoali raisim ota pymt ia hem lo private blo hem seleva wea mi no aware.” So when those payments were raised, he says that the Respondent did them himself and he (the CDO) was not aware.
  6. He was then asked[22] “After hem wakem PV wat happen?” His answer was “Time for compile Acquittal Rpt, hem handim cam payments done These payments done b4 $100T paid to G/B Const/. All PV not part of $100T according to dates.”
  7. Again, the crucial element of fraudulent conversion to his own use or benefit need to be established in relation to this specific allegation of $380.90, that it was used to his own benefit or purpose.
  8. The issue accordingly is has this crucial piece of evidence being established to the required standard. On the evidence adduced, this is where the nexus also seems to fail.
  9. For the same reasons I find that this is where the link fails and the learned Magistrate was entitled to find that the Respondent does not have a case to answer in respect of this allegation.

THE SECOND (2ND) CATEGORY OF OFFENCES, COUNTS 2, 3, 4, 5, 6, 7, 8, 9, 12, 14, AND 16, BEING FOR CONVERSION TO THE USE AND BENEFIT OF ANOTHER PERSON.

  1. The next set of charges, consisting of eleven (11) counts relate to charges of fraudulent conversion of payments made to others for their use and benefit.

Count 2.

  1. This count relates to the fraudulent conversion of the sum of $3,000 paid to the use or benefit of Ezekiel Tonga on the 26th December 2014. This payment was supposedly paid on Thanksgiving Day, also known as Boxing Day and a public holiday.
  2. In the acquittal report (PEX 4), the payment is listed under “Administration”, the Recipient “GBC Office”, the payment described as “GBC Consultations (Pigs)” and the location listed as “GBC”.
  3. In his evidence[23], PW3 confirms the details of the payment in the payment voucher, being a pig for $3000, made on the 26th December 2014 to the Gao/ Bugotu Constituency Office for consultations and received by Ezekiel Tonga.
  4. When asked to explain the payment, he states: “Payment of live pig mifala usim lo XMAS Party 24/12/14.”
  5. The payment for the pig is being described as part of Administration costs and part of the consultation processes for the GBC. If it was indeed used for the Christmas party, is their evidence that the payment listed under “Administration”, and described as “GBC Consultations (Pigs)” was not used for that purpose?
  6. The crucial question in relation to this evidence is whether it is sufficient if it were the only evidence, to convict the Respondent of this charge. This raises the question whether the Christmas party held was not part of the consultation processes for the Gao/ Bugotu Constituency during that time. Has that been proven beyond a reasonable doubt? While there may be a presumption that a Christmas party is not part of a socio-economic development project, it also has not been disproved that the use of funds towards consultation purposes does not fall within the general guidelines provided for the use of such funds.
  7. In her evidence on the use of the funds, Ms. Selina Boso, who was the Permanent Secretary of the Ministry of Rural Development and Indigenous Affairs at that time, did identify three uses for which the funds may be used. These include, “firstly to assist newly elected Members of Parliament to establish constituency offices; secondly to meet socio-economic needs of constituents; and thirdly to support continuing projects of the constituency.”
  8. Whether holding a Christmas party is part of the consultation process in this instance has not been disproved to the required standard.
  9. The burden lies not with the Respondent but on the Crown to prove beyond a reasonable doubt that the purchase of the pig amounted to fraudulent conversion on the part of the Respondent.
  10. Again, the crucial element of fraudulent conversion for the use or benefit of another person need to be established in relation to this allegation.
  11. Even assuming that it may have been shown that the payment was made to Ezekiel Tonga, it needed to be established that it was fraudulently done. On the evidence adduced, this is where the nexus has not been established. It is not enough to prove that the payment may have been done but that it was fraudulently and dishonestly done by the Respondent.
  12. I am not satisfied the threshold of proof beyond a reasonable doubt has been crossed for the same reasons given above I am satisfied the learned Magistrate was entitled to find that the Respondent does not have a case to answer in respect of this allegation.

COUNT 3.

  1. This allegation relates to the fraudulent conversion of the sum of $500 paid on the 26th December 2014 to the use or benefit of Gideon Jesse.
  2. In the acquittal report, the payment is recorded under “Medical”, the Recipient is listed as Gideon Jesse, under description, it is listed as “Medical Assistance” and location is listed as “Huali”.
  3. In his evidence, PW3 confirms the details of the payment in the payment voucher as being made on the 26th December 2014 for medical assistance and payment recorded as being made to Gideon Jesse of Hualita.
  4. When asked if he was aware of the payment, he denied knowledge of it and says he only became aware of it when he received the payment voucher.
  5. I am satisfied there is evidence when such payment is contrasted with the purpose for which the Constituency Funds had been given responsibility for such type of payment falls short of that mandate. I find that the Respondent in this instance has a case to answer.

COUNT 4.

  1. This relates to the fraudulent conversion of $2,000.00 to the use or benefit of Thomas Tavake on the 30th December 2014.
  2. In the acquittal report, the payment is recorded under “Denomination”, the Recipient is recorded as “Thomas Tavake”, the payment is described as “Engravement Expenses” and location is listed as at “Vulavu”.
  3. In his evidence[24], PW3 confirms the details of the payment as recorded in the Payment Voucher as being made on 30 December 2014 for the sum of $2,000, and received by T. Tavake for engravement of son’s gravestone.
  4. When asked if he was aware of the payment, he denied knowledge and says only became aware of it when he received the payment voucher.
  5. For the same reason given above, if true, such payments do not fall squarely within the purpose for which such limited Funds are set aside for. I am satisfied there is sufficient evidence to put the Respondent to his defence in respect of this allegation.

COUNT 5.

  1. This allegation relates to the fraudulent conversion of the sum of $400 paid on the 30th December 2014 for the use or benefit of Francis Loke.
  2. In the acquittal report, it is recorded as payment done under “General”, the Recipient is listed as “Francis Loke”, and comes under the description as “Old People Assistance” with the location listed as “Binaboli”.
  3. In his evidence, PW3 confirms the details as recorded in the payment voucher as being made on the 30th December 2014, “for old people assistance” and was “received by Stanley Barnabus”, I presume on behalf of Francis Loke. Again he denied knowledge of the payment and only became aware when he received the payment voucher.
  4. For the same reasons given above I am satisfied there is sufficient evidence to put the Respondent to his defence in respect of this allegation.

COUNT 6.

  1. The allegations relate to the fraudulent conversion of the sum of $1,008 on the 2nd January 2015 paid to the use or benefit of Chief Davis Maneboro.
  2. In the acquittal report, it comes under “General” payments (what that means is not known), the Recipient is listed as “Chief Davis Maneboro”, the payment is described as “3 x Cartons of Beer” and location is listed as “Rasa”.
  3. In his evidence, PW3 confirms the details of the payment in the payment voucher as being made on the 2nd January 2015 to Chief Davis Maneboro but received on his behalf by Isaac Leguvaka. PW3 also denied knowledge of the payment and only became aware of it when he received the payment voucher.
  4. In this payment, it is extremely difficult to appreciate how such payment of money for three cartons of beer can be regarded as beneficial, productive or even developmental in terms of improving the livelihood and lifestyles of members of the Constituency. I am satisfied the Respondent does have a case to answer in respect of this payment.

COUNT 7.

  1. The allegations relate to the fraudulent conversion of the sum of $1,008 on the 2nd January 2015 paid to the use or benefit of Ellison Supa.
  2. In the acquittal report, it comes under “General” payments, the Recipient is “Ellison Supa”, described as “3 x cartons of Beer” and location is listed as “Poro”.
  3. In his evidence, PW3 confirms the details of the payment in the payment voucher as being made on the 2nd January 2015 to Ellison Supa but also noted as received on his behalf by Isaac Leguvaka. Both payments under count 6 and 7 were received on their behalf by the same person.
  4. PW3 denied knowledge of the payment and only became aware when he received the payment voucher.
  5. For the same reasons given for count 6 above, I am satisfied the Respondent does have a case to answer in respect of this charge.

COUNT 8.

  1. The allegations relate to the fraudulent conversion of the sum of $336 on the 2nd January 2015 paid to the use or benefit of Marshall Hiro.
  2. In the acquittal report, it comes under “General” payments, the Recipient is recorded as “Marshall Hiro”, payment is described as “1 x Carton of Beer” and location is listed as “Huali”.
  3. In his evidence, PW3 confirms the details of the payment in the payment voucher as being made on the 2nd January 2015 to Marshall Hiro but received on his behalf also by the same person, Isaac Leguvaka.
  4. For the same reasons given above, I am satisfied the Respondent does have a case to answer in respect of this charge.

COUNT 9.

  1. The allegations relate to the fraudulent conversion of the sum of $1,000 on the 2nd January 2015, paid to the use or benefit of Joel Neusia.
  2. In the acquittal report, it comes under the sector marked as “General”, the Recipient is listed as “Joel Neusia”, payment is described as “Wedding Assistance” and location is listed as “Poro”.
  3. In his evidence, PW3 confirms the details of the payment in the payment voucher as being made on the 2nd January 2015, for wedding assistance. The records of the Magistrate contain inter alia the following short hand notes “Rec – IL”, which I assume meant that the payment was also received on behalf of Joel Neusia by the same Isaac Leguvaka.
  4. For the same reasons given above I am satisfied the Respondent does have a case to answer in respect of this allegation.

COUNT 12.

  1. The allegations relate to the fraudulent conversion of the sum of $440 on the 3rd January 2015 paid to the use or benefit of Chris Vahia.
  2. In the acquittal report, the payment is recorded under “General”, the Recipient is “Chris Vahia”, described as “4 x gallons of petrol” and location is listed as “Thathaje”.
  3. In his evidence, PW3 confirms that the details of the payment in the payment voucher as being made on the 3rd January 2015 for $440 for petrol (4 G) and was received by Paul Wale.
  4. For the same reasons given above I am satisfied the Respondent does have a case to answer in respect of this allegation.

COUNT 14.

  1. The allegation relates to the fraudulent conversion of the sum of $540 on the 4th January 2015 paid to the use or benefit of Robert Tige.
  2. In the acquittal report, the payment is recorded under “General”, the Recipient is “Robert Tige”, the payment described as “Beer” and location is listed as “Lepi”.
  3. In his evidence, PW3 confirms the details of the payment in the payment voucher as being made on the 4th January 2015 for “beer” and recorded as paid to Robert Tige but received it appears on his behalf by Ronald Leguvaka.
  4. For the same reasons given above I am satisfied the Respondent does have a case to answer in respect of this allegation.

COUNT 16.

  1. The allegations relate to the fraudulent conversion of the sum of $90 on the 4th January 2015 paid to the use or benefit of Chris Ugura.
  2. In the acquittal report, it is registered as payment done under “General”, the Recipient is listed as “Chris Ugura”, payment described as “Beer” and location is listed as “Tanageu”.
  3. In his evidence, PW3 confirms the details of the payment in the payment voucher as being made on the 4th January 2015 in the sum of $90 for “beer” and was received also by Ronald Leguvaka.
  4. For the same reasons given above I am satisfied the Respondent does have a case to answer in respect of this allegation.

THE THIRD (3RD) CATEGORY OF OFFENCES, COUNT 18, BEING FOR CONVERSION TO THE USE AND BENEFIT OF ANOTHER PERSON.
COUNT 18.

  1. Finally, this count relates to the fraudulent conversion by the Respondent of the sum of $1,000, allegedly paid to Jenny Pole on the 26th December 2014, but was converted for his own use or benefit.
  2. In the acquittal report, it is recorded as a payment made under “Income Generating” sector or project. The Recipient is named as “Jenny Pole”, the payment is described as “Sewing Assistance” and location is listed at “Vulavu”.
  3. In his evidence, PW3 (Jimmy Diamana), CDO, confirms the details of the payment in the payment voucher as being entered as 26 December 2014, made out to Jenny Pole for sewing assistance in the sum of $1,000.
  4. He states that when he signed the document as the CDO, he was not aware whether the recipient had received the payment or not. When asked why he signed on that basis he responded that it was to complete the process for funds so that they can be accessed.
  5. Jenny Pole was the fourth witness called by prosecution who gave evidence on this alleged payment.
  6. Her evidence in essence was to deny receipt of the said money on that date 26th December 2014. She had gone on holiday to her husband’s village at Molforu, Katova District, Isabel as her husband’s father was sick. In cross examination she maintained her answer that she was not in Honiara at that time and did not receive that payment.
  7. She did concede however, that at a separate time she was given $1,000 to assist her with her sewing work. She maintained in cross examination that she did not receive any money during the date stated on the acquittal report, but conceded that she did receive the same amount of money on another date. She also conceded that she did take clothes to show to the Respondent, being sewing work that she had done.
  8. Again, the crucial element of fraudulent conversion to his own use or benefit need to be established in relation to this allegation of $1,000.00, that it was used to his own benefit or purpose.
  9. The issue accordingly is has this crucial piece of evidence being established to the required standard. It is not sufficient alone to prove that the money was not paid on that date alleged in the charge. The prosecution must go to prove that it was converted to his own use and benefit.
  10. This is where the nexus fails, for the witness PW4, did concede that payment of the said money was given to her but at a different time.
  11. For the same reasons I find that this is where the link fails and the learned Magistrate was entitled to find that the Respondent does not have a case to answer in respect of this allegation.

Decision.

  1. The appeal against the following seven charges, counts 1, 10, 11, 13, 15, 17 and 18 and count 2 is dismissed. The appeal against the following ten charges, counts 3, 4, 5, 6, 7, 8, 9, 12, 14, and 16 is upheld.
  2. Having considered the submission by the Appellant for orders that the matter be remitted back to the Magistrates’ Court before a different Magistrate for retrial, I am satisfied as well that this order be granted and I so order.

Orders of the Court.

  1. Dismiss appeal against the orders of the Magistrate in respect of counts 1, 10, 11, 13, 15, 17 and 18, and count 2;
  2. Uphold appeal against the orders of the Magistrate in respect of counts 3, 4, 5, 6, 7, 8, 9, 12, 14, and 16;
  3. Quash orders of the Magistrate in respect of counts 3, 4, 5, 6, 7, 8, 9, 12, 14, and 16;
  4. Direct that the matter in respect of counts 3, 4, 5, 6, 7, 8, 9, 12, 14, and 16, be remitted back to the Magistrates’ Court before a different Magistrate for retrial; and
  5. No order for costs.

Sir Albert R. Palmer CBE.
The Court

[1] This is marked as “Exhibit PEX 1” in the Magistrates’ Court.
[2] Rule 2.1, 2.1.1 – 2.1.6
[3] Rule 2.3.1
[4] Rule 2.3.2
[5] Rule 2.4.1
[6] Rule 2.5.1
[7] Rule 2.6.1
[8] Rule 2.7.1
[9] Rule 2.7.2
[10] Rule 2.8
[11] Regina v. Somae [2005] SBCA 18
[12]40 CR. Ap. R. 62 at 63
[13] [1998] SBHC 69; HC-CRC 96 of 1993 (17 July 1998).
[14] Toritelia v Regina [1987] SBCA 1; [1989] LRC 647 (30 March 1987)
[15] Rule 2.9
[16] Rule 2.10
[17] rule 2.11
[18] See pages 147-149 of the Appeal Book.
[19] Page 68 of the Appeal Book
[20] Page 69 of the Appeal Book
[21] Page 70 of Appeal Book.
[22] See top of the page at page 71 of the Appeal Book
[23] See page 66 of the Appeal Book.
[24] See page 67 of the Appeal Book

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2023/169.html