Rex v Makahununiu [2004] TOSC 24; CR 293 2003 (26 May 2004)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

NO. CR. 293/2003

REX

-V-

SITALEKI MAKAHUNUNIU

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr Sisifa for the Crown and
Mr Tu'utafaiva for the accused.

Dates of hearing: 29 and 30 April 2004.
Date of judgment: 30 April 2004.

JUDGMENT

This accused was charged with one count of theft, contrary to section 143 (a) of the Criminal Offences Act, and one of obtaining money by false pretences, contrary to section 164 of the same Act. Both counts related to the same events and he pleaded not guilty to both.

At the end of the trial, I acquitted him but, because the court was due to start the circuit in Vava’u the next day, I stated I would give my reasons in writing on my return. I now do so.

On 23 March 2001, Mr. Kik Velt deposited a number of cheques amounting to $5,160 into his account at the Westpac Bank of Tonga. The cashier on duty at that time entered the details of the deposit into the computer but misrecorded part of the number of Mr Velt’s account. Instead of entering the first part of the account number as 01.241..., he wrote 01.291... Although the deposit was written into Mr Velt’s passbook, the money was wrongly credited to account 01.291... in the bank’s records.

The savings account with that number belonged to the accused and so, on the computer record, it was credited with an extra $5,160.

Five months later, in the morning of 20 August 2001, the accused went to the bank with his passbook. It recorded a total balance of $305 and he withdrew $250 leaving a balance of $55. However, the teller noticed there was difference with the total in the computer of $5,160 and so she entered the additional credit into the passbook before handing it back to the accused. She said she should have checked before doing so but, as she had only been a cashier for a month or so, she did not.

It was suggested by counsel for the defence that the accused asked about the additional sum and was told that it was money which had been wired from abroad. The bank witness denied that and insisted that she simply filled in the book, handed it to him without saying anything and he took it without comment.

This had occurred at the branch of the bank near Pangai. However, that afternoon, the accused went to the Railway Road branch and withdrew $5,000. The procedure for a sum of that size was that it had to be authorised. As the new total in the passbook corresponded with the computer account, the authority was obtained, the money paid to the accused and he left.

More than two months passed until, on 1 November 2001, Mr Velt came into the bank and it was noticed that the figure in his passbook did not match the figure in the bank’s records. Needless to say he complained. The mistake was found and the teller who made the original mistake was asked to follow the matter up.

He went to see the accused at his home the same day and explained what had happened. The accused agreed to contact the bank the next day but he did not appear. The teller returned but was only able to speak to the accused’s wife. She suggested the best course would be to take out a loan to repay the money.

Some days later the accused and his wife went to the bank and spoke to one of the expatriate officers. Again there was no contact for some days and so the teller went to see him to ask him to sign the loan forms. The accused declined, saying there were things he had to think about first. Thereafter there was no contact and the police were informed.

There was some dispute as to the conversation between the teller and the accused on 1 November 2001 but the teller did agree that the first time they spoke the accused said he thought the money had been deposited to his account by his parents in the United States of America. The witness also agreed that it was common for money to be deposited from abroad to accounts of customers in Tonga. When that is a passbook account as in this case, the new amount will be added to the customer’s passbook when he next attends the bank.

The accused was seen by the police shortly after these events. It is not clear on the evidence what happened to the investigation after that. However, in March 2003, the accused was again interviewed by the police. Remarkably, the interview took place after the accused had appeared on summons in the Magistrates’ Court for this offence. That is a procedure which should only be use in exceptional circumstances and I consider it was wrong to do so in the way it occurred here. A number of other objections were raised to the manner in which that interview was conducted. I do not go into them in any detail. They were not challenged on the voir dire and I am satisfied beyond reasonable doubt they do not render the interviews inadmissible.

In the interview by the police, the accused repeated his claim that he believed the money had come from his parents abroad. He also said that, a short while after he had withdrawn the money, he heard from his father and realised the money was not his. He agreed he went with his wife to speak to the palangi bank officer about a loan but then the police charged him so he decided not to repay it.

At the close of the Crown case, I found there was no case to answer on the false pretences count. The charge was under section 164 of the criminal Offences Act:

"Every person who by any false pretence obtains for himself or for any other person any money, valuable security or other thing whatever shall be liable to the same punishment as if he had committed theft."

Counsel cited authorities relating to offences of deception under the English Theft Act but our section 164 is similar to the offence under section 32 of the English Larceny Act, 1916. The passing of the Theft Act changed the law by replacing the various offences of false pretences with the new offences of deception. It also removed the need for the deception to relate to a present fact. Our law still has that requirement.

In this case, the particulars of offence simply state that the accused "obtained for yourself $5,000 by false pretences." No objection was taken by the defence but the particulars should always set out the false pretence that is being alleged. The prosecution never explained what it was in this case and, at the close of the prosecution case, conceded there was no case to answer. Had he not, I would have struck it out in any event because the rule in all cases of false pretences (and indeed still of deception) is that the prosecution must prove that the false pretence operated on the mind of the person deceived and induced the passing of the property. It is normally necessary to prove it by direct evidence from the person deceived; R v Laverty [1970] 54 Cr App R 495; R v Tirado [1974] 59 Cr App R 80. It is only in the most obvious cases that this does not need direct evidence; R v Lambie [1981] 3 WLR 88.

In this case there was no clear evidence as to the actual false pretence nor was there evidence as to what false sentence induced the cashier to part with the money and the case must inevitably fail.

The case proceeded on the theft charge.

The accused gave evidence. His parents live in the United States. His father is still employed there and his mother used to work until ill health required her to stop. The accused returned to Tonga and married here in 2001. He is living at present in his father’s house the construction of which was started in 2001 and completed this year.

He told the court that, in 2001, his parents were in Tonga and his mother advised him and helped him to set up a bank account. Before they returned to the United States in about July, his mother told him she would transfer a large sum of money into this account to be used for the construction of the house.

He had already come to expect financial assistance from his parents and told the court how they frequently sent him sums of various amounts usually through Western Union. The largest sum he had received in one transfer was US$4,000. He agreed that he had never had it transferred directly to his account before but said that his mother had suggested this might occur and so he had no reason to doubt it was from her when the teller said it came from abroad.

His account of the incident in August 2001 was that the teller asked him if he had family overseas and then told him that there was some money she had to enter into the book.

He said that, after he went home, he realised he needed some money for personal things and so he returned and withdrew $5,000. It was spent on such things as rent, clothes and entertaining friends. He says he did not think anything about it until the teller came and told him of the problem. The accused was shocked and told the teller to leave his house.

Eventually he and his wife went to the bank and spoke to the bank officer but he started pointing his finger at the accused and telling him he had to repay the money. The accused became aggravated and left.

In his examination in chief, he said that the first time he learned it was not his money was when the teller came to speak to him. In cross-examination he insisted that he believed his parents sent the money. He accepted that it was for the house and agreed that he only spent a small portion on the house. He told the court that when he withdrew the money the sum had been verified by the bank and that he had no reason to doubt it was from abroad. It was in his passbook and he had no reason to doubt it was his.

He explained that the first time he called his parents after this withdrawal was after the teller had come to his house. The first time he was satisfied it was a mistake and the money did not belong to him was when he saw the palangi bank official.

I am not satisfied on the evidence that the prosecution has proved that he knew the money was not his when he withdrew it from his account. The fact he went the same day to a different branch and withdrew nearly all the extra money and then, although he thought it was sent by his mother to pay for the new house, he spent nearly all of it on personal items all give rise to strong suspicion but that is not enough. He acknowledged in court that the money was not his and that he should not have used it and I am satisfied that he first realised that soon after he received it as a result of speaking to his father as he said he had done in his interview with the police.

Mr Sisifa for the prosecution suggests that even if the accused received the money innocently, once he realised it was not his and still kept it he committed the offence of theft. The authorities he cited in support are all from the English Theft Act which replaced the offence of larceny with theft. The new offence introduced the concept of dishonest appropriation and removed many of the technicalities which required the creation of special offences under the old law such as larceny by bailee. Under the Theft Act, a dishonest appropriation may arise even after an innocent taking but I do not accept that applies to our offence of theft.

By section 143,

"Theft is the dishonest taking without any colour of right of anything ...capable of being stolen ... with intent either -

to deprive the owner permanently of such thing, or

to deprive any other person permanently of any lawful interest possessed by him in such thing,

and with the intention of converting such thing to the use of any other person without the consent of the owner or person possessing such interest therein as aforesaid..."

It is clear that the dishonest intent must be present at the time of the taking. If the taking was done in the belief that the taker had a right to the property, the offence is not committed. Should he subsequently realise he had no right to the property and dishonestly decide to keep it for himself he does not commit theft because the taking has already occurred. Clearly, in such an action, he has no colour of right but that cannot make his subsequent appropriation a dishonest taking in terms of section 143.

In this case I am satisfied beyond any doubt that the accused did realise soon after he took the money that it was not is but I am not satisfied to the criminal standard that he knew when he took it from the cashier.

He must therefore be acquitted of theft.

NUKU’ALOFA: 26th May, 2004

CHIEF JUSTICE