Regina v Haisoma [2017] SBMC 24; Criminal Case 394 of 2016 (27 June 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)

Criminal Case No. 394 of 2016

REGINA
-V-
NORAH SINA HAISOMA

Prosecution: Mr. R. S. Wheatney of Police Prosecutions Office
Defence: Mr. B. Alasia of the Public Solicitor’s Office
Trial: April 4, 20, 21, 25, May 16, 18 and June 9, 2017
Judgment: June 27, 2017

JUDGMENT

Background

1. The accused, Norah Sina Haisoma, is charged for one count of conversion contrary to section 278(c)(i) of the Penal Code. The charge relates to cashing of a cheque of $5000 of the complainant, Regina Maratahana, following her loan application.
   
2. At the time of the alleged offending, she works as an Acting Loans Managing Officer for the Solomon Islands Public Employees’ Union (“SIPEU”) here in Honiara. She was given that cheque by her superior on 22^nd February 2016 and cashed it on the next day. She supposed to give that money to Regina Rioraha as authorized by Regina Maratahana. Instead, she used it for her own use and benefit. That is essentially the case for the prosecution.
   
3. The defence on the other hand denied the allegation and said that she had already given the money to Regina Maratahana in the afternoon of 23^rd February 2016. This was witnessed by one of her colleagues. Hence, it was Regina Maratahana who was not telling the truth and thus, she should be acquitted of the charge.
   
4. The prosecution case consist of 3 witnesses and 8 exhibits^[1]. For the defence, only 2 witnesses including the accused herself.
   

Agreed facts

5. By agreement pursuant to section 21 of the Evidence Act, I accepted and admitted these facts without the need for proof:
   
   • (a) That the accused is Norah Sina Haisoma;
     
   • (b) That she was an employee of Solomon Islands Public Employees’ Union in February 2016 at the time of the alleged offending; and
     
   • (c) That $5000 was the amount of money alleged to be converted by the accused.
     

Issue for determination

6. The issue for me to decide is straight forward. That is; whether or not the accused failed to give the $5000 to Regina Rioraha as authorized by Regina Maratahana and used it for her own use and benefit.
   

Standard of proof

7. In all criminal trials, the prosecution carries with it the burden of proving its case beyond reasonable doubt. That burden remains with the prosecution though out the whole trial. The accused does not have any burden to prove her innocence. If there is any doubt as to her guilt then she must be given the benefit of that doubt. Therefore, it is incumbent for the prosecution to produce evidence by means of which such high degree of probability is raised, an ordinary reasonable man after mature consideration comes to the conclusion that there exists no reasonable doubt that the accused has committed the offences. The ordinary person must in other words, be morally certain of the guilt of the accused.
   
8. If the defence establishes to the Court's satisfaction that there is reasonable doubt, then the prosecution case must fail. That is the right of the accused that must be afforded in criminal trials.
   

Prosecution case

9. Regina Maratahana is the first witness for the prosecution. She is a primary teacher by profession and currently, the Head Mistress for Tawanaora Primary School. She applied for a loan for school fee at SIPEU for the amount of $5000 as exhibited in P2. This was approved in a list pinned up at the SIPEU so she started to follow up with the SIPEU of when she would receive the payment. This began on 19^th February 2016.
   
10. On 22^nd February 2016, she again went to check for the treasurer of SIPEU, Ian Talasasa, purposely to find out when she would collect her cheque but he was not in the office. Hence, she approached Norah and advised her to collect her cheque from Talasasa so that she would collect it from her the next day. It appears that she really needed that money since she would return home on the next day.
    
11. On 23^rd February 2016 at about 1:00pm, she again went to SIPEU. She checked for Norah but she was not in the office. Whilst she was waiting for Norah, Talasasa arrived and she enquired with him when she would receive her payment. Talasasa advised her that all payments would be ready by Friday of that week. Because she would return home that day, she asked him if it is possible to borrow money from SIPEU against her loan. This was not agreed to by Talasasa. Instead, she was advised to write an authorization note for someone to collect her cheque in her absence. Acting on that advice, she then wrote a note authorizing her sister in law, Regina Rioraha, to collect that cheque on her behalf. She passed that note to Talasasa and that was the last time she enquired at SIPEU.
    
12. She left SIPEU, called Rioraha and borrowed $2000 from her that same afternoon. She advised Rioraha that she had already handed a note to Talasasa authorizing her to collect her cheque on her behalf at SIPEU.
    
13. She returned home and thought everything was all right. It few weeks after that Rioraha called her by phone and informed her that she had followed up the cheque at SIPEU and was told by Norah that she already gave the money to her on the day she returned home. Maratahana denied this and said that she would come over to Honiara to follow this up.
    
14. She came over to Honiara and together with Rioraha, they approached Norah. After much queries, they eventually ended up at the Central Police Station. Yet either side didn’t admit who was at fault. Therefore, this matter eventually ended up in court.
    
15. It is clear throughout the cross examination that she had maintained her stands that she didn’t receive the money from the accused. She even denied the suggestions put to her that she returned to SIPEU in the afternoon of 23^rd February 2016 and had already collected the money. It was put to her that when she turned up to Norah in the afternoon of that day, she said to Norah that she didn’t bring any betelnut because she was in a hurry and gave her $20 before she left the SIPEU building. She denied all of these suggestions. She was very responsive to all questions being asked throughout the entire cross examination.
    
16. Regina Rioraha’s evidence revealed that she was advised by Maratahana to collect the cheque at SIPEU after she gave her $2000. On Monday the week after Maratahana had left, she went to SIPEU and enquired with Chris and Norah about the cheque for Regina. Norah asked her for the surname of Regina but since Rioraha did not know her surname, Norah then advised her to wait for Talasasa and at the same time, she would check the records for that cheque.
    
17. Few weeks after, Rioraha went to SIPEU again and enquired with Chris for the cheque. Chris advised her to wait for Talasasa. She was frustrated and started to ask further whether they knew about that cheque. During the course of the conversation, Norah came in, overheard the conversation and told her that she had already cashed the cheque and gave $5000 to Regina Maratahana. Upon hearing this, Rioraha called Maratahana and asked her whether she had obtained the money from Norah but she denied it. Norah also asked her for Maratahana’s phone number so that she would also call her to reconfirm it.
    
18. Later during the year, Maratahana came over to Honiara and they approached Norah at her residence and asked her about the money. Norah, maintained that she had already gave that money to Maratahana so they eventually ended up at the Police Station for mediation. Still no concession reached and this resulted in the matter ended up in court.
    
19. Ian Talasasa evidence is that in 2016, he was the treasurer and the acting General Manager of SIPEU. At SIPEU, they have the loan and advance money lending scheme to its members. For the loan, the applicant has to fill in the payment voucher form and once the payment is ready the applicant or the staff working for SIPEU can sign the form in exhibit P2 as proof of the receipt of the money. This is important for their accounting purposes.
    
20. He recalled that he signed a cheque written in the name of Regina Maratahana on 19^th February 2016 and released it to Norah on the 22^nd of February 2016. He gave it to Norah since she was one of her trusted staffs. Thereafter, he did not know what happened to the cheque after it was given to Norah. He could not recall whether he met Maratahana at SIPEU on the 23^rd of February 2016.
    
21. He explained in cross examination that a person can collect money on behalf of a member of SIPEU if there is a written authorization note. In such cases, it is a private arrangement between the beneficiaries of the funds, however, that can only be accepted if there is an authorization note but not verbal request.
    

Defence case

22. The accused on the other hand gave sworn evidence that she worked for the SIPEU as an Acting Managing Loans Officer during the month of February 2016. Amongst her other duties, she was responsible for payment of loans to SIPEU members. She recalled that on 19^th February 2016, Regina Maratahana came to the SIPEU and spoke with her and Chris. She followed up her loan but was advised to wait for Talasasa. Maratahana then went over to the advancement payment section. Maratahana then came back on 22^nd Feb 2016 in the afternoon and checked again for her loan. Maratahana then requested her if she could collect her cheque from Talasasa and kept it with her for collection on the next day. She really needed that money since she would return home on the next day. After she left SIPEU, Talasasa came and then Norah approached Talasasa and collected that cheque. She then signed the payment voucher since she received the cheque from Talasasa and stored it in the drawer since it was already evening.
    
23. She cashed the cheque on the next day during lunch time at the POB bank. However, she didn’t return back to the office but went to attend her class at SINU until 3:00pm. After class, she returned to SIPEU and arrived at about 4:00pm. When it was going up to 5:00pm, Maratahana walked in the office and said “how things blo me ready”? She immediately gave her the $5000 cash came in 5 bundles. Maratahana then said to her that she didn’t bring any betelnut because she was in a hurry and so she only gave her $20. When Maratahana came in, Felicity was also present at the advance section corner of the room.
    
24. Later on, she recalled Regina Rioraha came to SIPEU to enquire about the cheque for Maratahana. She instructed Chris to advise her to come the following day so that she would check the records to find out whether the cheque was already been dispatched. She checked her records and found that she already gave the cheque to Maratahana.
    
25. She further recalled that on 10^th March 2016, Rioraha came again to SIPEU and it was on that occasion she told her that she already gave the cheque to Maratahana. It appears at that stage that Rioraha was not happy with her response and so she asked Rioraha for Maratahana’s phone number so that she would call and inform her about this. She called Maratahana and told her that she already gave her the money but Maratahana denied it.
    
26. She explained that Maratahana didn’t call her by phone before Rioraha came to SIPEU or even any member of SIPEU.
    
27. During the course of cross examination, she denied the suggestion that she took the money and used it for her own purpose. It was put to her that she was not instructed to cash the cheque but she explained that she cashed it because of Maratahana situation that she would return home that day. She maintained that she had already gave the money to Maratahana when she came to SIPEU in the afternoon of 23^rd February 2016. She admitted that Felicity is her former work colleague at SIPEU. She also explained that she overlooked studied at USP and should SINU in 2016 when giving her answer when interviewed by police. She admitted that she signed on behalf of Maratahana since she was the one who received the cheque on her behalf.
    
28. Felicity Daepada was called mainly to corroborate the evidence of the accused that she was inside the SIPEU office in the late afternoon of 23^rd February 2016 when Maratahana came and talked with Norah. She stated that she did not hear what they were talking about since she was busy with her work at the advance section area. She further testified that she was the one who served Maratahana when she advanced $500 on 19^th February 2016 and not Norah.
    
29. She confirmed in cross examination that Norah had contacted her about this case and eventually became her witness.
    
30. It appears during cross examination that her memory of her recollection about the names and how many persons that attended SIPEU on 23^rd February is uncertain given the lapse of time. However, she maintained that Maratahana came in the room and spoke with Norah that late afternoon.
    

Court’s assessment

31. This is a word against word case. Both the prosecution and defence have maintained their position and said that it was the opposing party that is not telling the truth. Given the nature of this case, I will have to scrutinize the circumstances surrounding the conduct and behavior of each party in order to ascertain whose evidence is credible and believable at the end of the day. That assessment will have to base on the evidence unfolded during the trial and taking into account that it is the prosecution that has the burden to prove this case to that high standard – that is beyond reasonable doubt.
    
32. I am mindful that most of the evidence given here are from the accused former colleagues and there is tendency that they will tend to give favorable evidence for her. However, since they have given evidence on oath, I don’t need to take it further than that, other than to say that their evidence were given on oath and as matured and educated persons, they were aware of the importance of telling the truth.
    
33. I will first begin with the prosecution.
    
34. Maratahana stated that she handed an authorization note to Talasasa on 23^rd February 2016 for Rioraha to collect the cheque on her behalf. If that is the case then it is expected that she would not come again in the afternoon of the same day to collect the money as she had already authorized Rioraha to collect the money on her behalf. However, this was denied by Talasasa who is the prosecution’s own witness.^[2] Talasasa’s had virtually recalled clearly what he did with the cheque on 22^nd of February 2016 when asked by the prosecution. However, he said that he could not recall whether he met Marartahana or even whether she handed him any authorization note at SIPEU especially on the 23^rd of February 2016. If there is any note ever been given to him, he could easily remember it.
    
35. It is reasonably expected that if he was ever given any letter/note, he would place it in the SIPEU file or perhaps passed it on to Norah or any of the loans officers for their action if Rioraha attends to SIPEU and enquires for that cheque in due course. Unfortunately, this does not occur in this case and therefore, I have doubt whether she ever met Talasasa or whether there was any authorization note written by Maratahana at all.
    
36. Maratahana evidence is that she didn’t come to SIPEU after she had written an authorization note/letter. However, this piece of evidence faces stark contradiction by the evidence offered by Norah and Felicity. In other words, we have two defence witnesses on one hand against one prosecution witness on the other hand. However, this is not to say which version of evidence is to be preferred since this is not a question of preference.
    
37. I have carefully looked at the various evidence presented by witness from both sides and find that the defence evidence is collaborated. First, when Norah was interrogated by Police during the record of interview on 15^th April 2016 being a period less than 2 months after the alleged offending, she stated in her answer to question 40 that Felicity was inside the office when Maratahana came in that late afternoon. In other words, exhibit P1 corroborates the defence case. Second, Felicity in her sworn evidence also collaborated the evidence given by Norah. Even though, she was unable to recall the names of the members who attended at the SIPEU office on the 23^rd of Feb, she could clearly remember that Maratahana had come in and talked with Norah towards the evening part of that day. This is not only consistent with the accused evidence but also her assertion made to police in exhibit P1. Given this corroborative evidence for the defence, I tend to believe the defence case is corroborative, credible and reliable. Accordingly, its case is entrenched compared to the prosecution’s case.
    
38. It appears that the prosecution has raised the possibility of concoction or the accused had discussed and instructed Felicity what to say in court in the following series of questions:
    

Q: You knew this case by end of last year?

A: Yes

Q: How she contacted you?

A: She rang me

Q: What did she say to you when she called you by phone?

A: She told me that Regina reported a case against me about her loan

Q: Anytime she called you by phone this year?

A: No

Q: Both of you story this case?

A: Yes

Q: She instructed you what to say about this case in court?

A: No

39. When I considered her responses to these questions, the evidence is such that she admitted that Norah had contacted her about the case but as to whether or not she coached or instructed her on what to say in court is not well grounded or in other words, insufficient. This precludes the court from drawing any inference to reach a finding that they were discussing their evidence for a number of occasions prior to attending the trial. In my view, to support such assertion requires strong evidentiary base or platform and not on mere speculation.
    
40. Another concerning matter is the conduct of Maratahana for not explaining clearly the contents of the authorization note and also, for not contacting the SIPEU or even Rioraha whilst at home. She even did not obtain any phone number of SIPEU and also did not bother to contact Rioraha to find out whether she already collected the cheque. It was until about 2 weeks after she left home that Rioraha contacted her by phone and informed her about what the accused had told her about the money. Her conduct in this instance is suspicious and is contrary to a behavior of a person whose has left significant amount of money behind her. $5000 or even $3000, as the balance of the money, is a significant amount of money and hence, it is reasonably expected that any concerned person in the position of Maratahana would frequently call Rioraha even during the first week upon her arrival to find out whether she had already collected the money. This does not happen here. There is not any explanation offered by the prosecution about why she didn’t bother to contact Rioraha all those times. Unfortunately, I have to say with regret that her conduct after she left Honiara has rendered her as a witness who this court cannot trust and comfortably rely on.
    
41. What occurred here is the opposite. The accused was the one who called her immediately on the day when she was accused of not giving the money to Maratahana but at no time Maratahana did make any call to Rioraha. In my view, Norah’s case shows she had instantly taken a genuine action to redress the accusation leveled against her. She wasted no time but had to inform Maratahana that she had already gave her the money. She even described her physical appearance which was agreed to by Maratahana.
    
42. It is expected that if Norah is conscious of her guilt, she would find it uncomfortable to contact Maratahana because of the falsity of the information she was about to reveal. Norah’s behavior was contrary to any state of mind akin to fraudulent intent on her part. She did not want to conceal her dealing with the money but did exactly as what was expected of a person who did not want her name to be tarnished or to end up in trouble.
    
43. The only fault I find in terms of the accused conduct is her failure to give Maratahana to sign the payment voucher when she gave her the money. However, she explained that she was the one who received the cheque on behalf of Maratahana and therefore, she signed it on her behalf. Also, she explained that given the situation faced by Maratahana that she was in a hurry to go home, she just gave her the money on a genuine belief that it was now given to its rightful beneficiary. Her former explanation was qualified and corroborated by Talasasa who stated that Norah signed the payment voucher because she was the one who received the cheque on behalf of Maratahana.
    
44. I find the accused fault here is only a mere oversight. When the totality of her conduct is considered, her failure to ensure Maratahana needs to sign it is not substantially outweighed when considered against the evidence of Talasasa and Felicity.
    
45. In a case like this, it is incumbent on the prosecution to prove the accused has kept the money and failed to give it to Regina Rioraha and thereafter, used it for her own use and benefit. There must be credible evidence that shows the accused did not give the money and further, the evidence must be such to negate or displace the explanations offered by the accused and her witness.
    
46. The law on conversation requires the prosecution to prove the accused retains the property and fraudulently converts it to his/her own use and benefit. This was reiterated in the case of Regina v Reqeo,^[3] where Lungole-Awich J, made the following observations:
    

“The essence of the offence of conversion, which was adopted in s:271 of our Penal Code from the English Larceny Act of 1916, is that the property had been received or was in the possession of the accused lawfully and that he fraudulently converted it to his own use or to the use of some other person. The most significant element in conversion, like in larceny, embezzlement and other related offences in the English Larceny Act of 1916 and our Penal Code is the fraudulent intent. The fraudulent intent is disclosed when one deals with the property of another, without that others consent and well knowing that it will prejudice the interest of that other person. The point is explained in great detail in the case of R -v- Williams cited above. An important case from our Court of Appeal, on the point is Toritelia -v- The Queen (1987) SILR 4.”^[4]

47. Unfortunately, this case is one which the accused denied retaining/withholding that money but as she vigorously maintained, she already gave it to Maratahana. The evidence adduced by the prosecution falls short to negate this assertion advanced by the accused.
    

Decision

48. Based on those findings, the flaws and defects contained in the prosecution’s evidence, I have in my mind serious doubts as to whether the accused converted the $5000 as alleged by the prosecution. Therefore, she must be given the benefit of that doubt.
    
49. I find the prosecution fails to prove its case beyond reasonable doubt and accordingly, I must acquit the accused, Norah Sina Haisoma, of the charge instituted against her herein.
    
50. Order accordingly.
    
51. 14 days right of appeal.

....................................................................................

Augustine Aulanga

Principal Magistrate

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^[1] Record of Interview of Norah Sina Haisoma (P1), SIPEU Journal Voucher (P2), Pan Oceanic Bank Limited cheque of $5,000, Statement of Adrian Sammy (P5), Statement of Chris David (P6), statement of Betty Tagini (P7) and Agreed Facts (P8)
^[2] Prosecution witness number 3
^[3] [1998] SBHC 69; HC-CC 096 of 1993 (17 July 1998)
^[4] At page 3