Leone v Rex [2015] TOCA 4; AC 15 of 2013 (31 March 2015)

IN THE COURT OF APPEAL OF TONGA

CRIMINAL JURISDICTION AC 15 of 2013
NUKU'ALOFA REGISTRY [CR202 of 2011]

BETWEEN:

VEIMAU LEONE
Appellant

AND:

REX
Respondent

Coram: Salmon J
Moore J
Blanchard J
Tupou J

Counsel: Mr S. Tu'utafaiva for the Appellant
Mr S. Sisifa SG for the Respondent

Date of Hearing : 26 March 2015
Date of Judgment: 31 March 2015

JUDGMENT OF THE COURT

[1] This is an appeal against conviction and sentence on a charge of fraudulent conversion by a public servant. For the reasons set out in this judgment we have decided to allow the appeal and to quash the conviction.

[2] The appellant served with the Police for 37 years. In 2006 he became the officer in charge for the 'Eua District. At this time he held the rank of Inspector. He retired from the force in 2011. When he commenced work in 'Eua there were two police vehicles available. One apparently became unusable. The appellant was already keeping the better vehicle at his home and decided that, rather than leave the second vehicle at the Police station for use by all officers, he would keep it at his home "to make it last longer". However he said that if other officers wished to use the vehicle (known as P1160) he would make it available to them. It appears however that over the key period from August 2010 to March 2011 the log book showed that he was the only user.

[3] PC. Latu Tahifote was the administrative officer during and prior to the relevant period. He had a standing instruction from the appellant to prepare a requisition for 40 litres of diesel fuel each week. The respondent said he filled the tank of P1160 each week and that if it would not take the full 40 litres he would put the rest into a container which he would take home and empty into a 44 gallon drum for use during the week if necessary. He said he stored the diesel at home rather than at the Police station because the station was used by a number of people and it was not safe to store it there. He said there had been theft of an item from the Police station although he accepted that he had not reported this to his supervisor.

[4] PC. Tahifote lodged a complaint against the appellant arising from difficulty in obtaining use of the vehicle. The investigation which followed resulted in the police concluding that the appellant had been storing the petrol and converting it to his own use. The prosecution followed. The appellant maintained throughout the investigation and the trial that he had only used the diesel for Police purposes. He said that although he owned a diesel fuelled vehicle it was not driveable during the relevant period. He also denied that he had ever had some of the allowance taken as petrol as stated by the service station attendant. The suggestion was that this was for use with an outboard motor but the appellant said he did not own an outboard or a boat. He was not challenged on either of these assertions. The only evidence called in an attempt to establish unlawful use of the diesel was from a witness who did some work for the appellant's son and was supplied by the son with the diesel for his tractor. The son's evidence was that he purchased the diesel himself. At the time of the investigation approximately 40 litres of diesel was recovered from the tank at the appellant's home.

[5] PC. Tahifote prepared a schedule purporting to show by reference to distance travelled and his assessment of the fuel consumption of the vehicle the total amount of fuel which had been misappropriated. However the Chief Justice, who conducted the trial, did not rely on it. Cross examination had disclosed errors and it was apparent that the figure used for fuel consumption took no account of the varying and sometimes very difficult terrain on 'Eua Island. During the hearing before us Mr Tu'utafaiva produced a schedule which showed fuel purchased and distances travelled over a period of months prior to the relevant period. On all but one occasion over the 5 month period 40 litres of fuel had been purchased, in most if not all cases by officers other than the appellant. The distances travelled showed a similar fluctuation to that recorded during the relevant period. The Chief Justice referred in his judgment to the requisitioning of fuel in the 4 weeks after the vehicle had been taken away from the appellant. These averaged out at slightly over 40 litres a week. Because of the questionable reliability of the schedule produced by the Police, the Chief Justice decided to base his findings on the admission by the appellant that he had taken fuel home an about 10 occasions. He made the assumption that 20 litres were taken home on each occasion although the evidence does not support that. He found the appellant guilty of converting 200 litres of diesel.

[6] In his judgment the Chief Justice relied on R v Smythe 72 Cr App. R. 8 in determining the approach he should take to the question of proof of the offending. The principle in Smythe is that where stolen goods are found in the possession of a person a jury may infer guilty knowledge or belief (a) if he offers no explanation to account for his possession or (b) if the jury is satisfied that the explanation referred is untrue. The judge noted that in this case it was not alleged that the diesel had been stolen but he nevertheless appears to have adopted the approach that an inference of guilt could be drawn if he concluded that the appellant's explanation for keeping the diesel at his home was not true.

[7] We consider that the judge misdirected himself. This is not a Smythe case. The appellant should only have been convicted if the prosecution established beyond reasonable doubt that the appellant was guilty of fraudulent conversion. The judge's decision did not follow that approach but was based on his finding that the appellant's explanation for having the diesel at his home was untrue. Thus he placed an inappropriate onus on the appellant to prove his innocence.

[8] Where the prosecution proves that a defendant had possession of goods that have been recently stolen, the physical ingredient of the charge of unlawful possession has been established and the evidential burden shifts to the defendant to provide a credible explanation for that state of affairs. If he does not do so, then the mere proof of his possession suffices to show that he was the thief or that he had guilty knowledge of the theft. But in a case like the present, proof of possession of the goods by the appellant was not enough to shift the evidential burden. It was still necessary for the prosecution to show to the requisite standard of proof beyond reasonable doubt that he dishonestly converted them. In this case it involved proving that he dishonestly himself used or allowed others to take or use the diesel for other than police purposes. The absence of a credible explanation for taking the fuel home might be something to which the prosecution could point but that absence was not in itself conclusive.

[9] We have also concluded that the evidence relied upon by the Judge to reach his conclusion was not sufficiently persuasive to permit his finding that the explanation was untrue. The factors he took into account are at pages 9 and 10 of his judgment. The first reason suggests that the appellant's evidence was that he had to take 40 litres a week whether required or not. That was not what the appellant said. He said that the diesel consumed was around 40 litres each week. Secondly he said the appellant's evidence was that the stored diesel was needed to provide a buffer for unexpected surges. Again this is not what he said. Rather his evidence was that callouts occurred at times fuel was not available for purchase and the stored fuel was for use if needed at those times. The judge then dismissed the appellant's assertion that the Police station did not provide a secure environment for storage, as absurd. But the quite detailed and credible evidence the appellant gave for this assertion was not seriously challenged.

[10] It is for all the reasons outlined above that we have concluded that the appellant's guilt was not proved beyond reasonable doubt and accordingly the conviction and sentence are quashed. The appellant is therefore acquitted of the charge on which he was convicted.

Salmon J

Moore J

BlanchardJ

Tupou J