Rex v Leone [2013] TOSC 28; CR 202 of 2011 (13 September 2013)

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

NO. CR. 202 of 2011

REX

v

VEIMAU LEONE

S. Sisifa with Ms L. Macomber for the Crown
'O. Pouono for the Accused

JUDGMENT

[1] The accused was Officer in Charge of the 'Eua Police Station from 2006 to about March 2011. He has pleaded not guilty to one count of Fraudulent Conversion by a Government Servant contrary to Section 53 of the Criminal Offences Act (Cap 13). The particulars of the alleged offence are as follows:

"... between the months of August 2010 and March 2011 at 'Eua while employed as a police officer you did you fraudulently convert to your own use diesel fuel worth $1847.34 from Pacific Energy which you were entrusted to use on Ministry of Police vehicles by virtue of your employment as police officer".

He elected trial by judge alone.

[2] A summary of agreed facts was filed in which it was accepted:

"(i) that the accused was employed as a public servant, serving as an Inspector of Police in the Tonga Police and Officer In Charge of the 'Eua police station;

(ii) that the accused would issue government purchase orders for diesel to be purchased from Pacific Energy Gas station;

(iii) that the diesel was purchased to be filled into Police vehicle P1660 and to be used by the accused and other officers at 'Eua police station in the course of their employment; .

(iv) that the accused filled part of the diesel into the police vehicle P1660 and took part of the diesel and stored it at his home;

(v) that the accused voluntarily surrendered the diesel that was kept at his residence on 19 March 2011 to Tonga Police."

It was also accepted that the sole issue before the Court was whether it had been proved beyond reasonable doubt that the accused fraudulently converted the diesel to his own use when he took and kept the fuel at his home.

[3] The Crown called four witnesses, the present officer in charge 'Eua, PC Latu Tahifute, a bowser attendant, Lea'aesila Napa'a, a farmer 'Anitoni Vailea and the Investigating Officer, Inspector Siva 'Atevalu. At the close of the prosecution case there was no submission; the accused elected to give evidence and also called his son as a defence witness.

[4] It appears that the accused's alleged criminal conduct came to light as a result of a complaint by PWI PC Latu Tahifute that the accused would not share the use of the only police vehicle on 'Eua P1660 with his colleagues at the police station. As a result of this complaint, several police officers including Deputy Commissioner Soakai and PW4, Inspector 'Atevalu visited 'Eua and began making enquiries. On about 8 March 2011 PW4 and PW1 went to the accused's residence where they found about 40 litres of diesel stored in a drum in his kitchen.

[5] On about the same day the accused met PW4 and several other officers. PW4's unchallenged evidence was that the accused admitted that on several occasions he had not filled P1660 with all the fuel supplied to him upon presentation of the local purchase order at the filling station but had instead taken part of the fuel supplied to him home in a container where he kept it. According to PW4, the accused told him that he had taken the fuel home as this was "the only solution that I could think of" and also so that the police station would have a stock of fuel to use at the end of the financial year.

[6] In his own evidence the accused explained what he meant when he had told the investigating officer why he kept some of allocated fuel at home. According to the accused, the police vehicle sometimes needed to be "topped up" with fuel by the end of the week. He did not take only part of the allocation, later returning to the filling station to take the balance owed on the LPO as this had created problems. The only alternative was to take the fuel home and keep it there safely, ready and available, for use when required. He denied offering any explanation involving the end of the financial year.

[7] PW1 told the Court that he had studied the vehicle log books for P1160, three of which he initially produced and a fourth which was obtained later. From these log books he had prepared a table, Exhibit 4, from which he derived certain conclusions. The main conclusions were that the accused had not in fact ever put the whole amount of fuel obtained under the purchase orders into P1160. Applying the formula which he had derived from experience that 1 litre of fuel provided about 10 kilometers of travel, he concluded that P1160 had only travelled a distance approximately equivalent to 20 litres per week, not 40. In other words, the vehicle had not been "topped up" but the allocated fuel had been partly diverted to uses unconnected with P1160.

[8] Applying that formula to the mileage actually logged by the vehicle, PW1 concluded that approximately 684 litres of fuel which had been allocated and drawn had been diverted. On the basis of $2.70 per litre the value of the fuel was calculated to be $1847.34.

[9] The second prosecution witness Lea'aesila Napa'a told the Court that between August 2010 and March 2011 the accused "would usually" come to the bowser with a red fuel tank similar to that used with an outboard motor placed on the tray of P1160. When he came to collect his 40 litres weekly allocation the accused "would tell me" to fill only 20 litres and to fill the balance of 20 litres into red tank. Sometimes, according to PW2, the accused would tell him to fill 20 litres of diesel into P1160 and to put 20 litres of benzene into the tank. PW2 was not asked to estimate how often the accused had asked him to put 20 litres, whether of diesel or of benzene into the red tank but it seemed clear that PW2's evidence was that this was the usual, but not necessarily the inevitable practice. In cross examination, PW2 agreed that he had supplied benzene, against a diesel LPO but explained that sometimes a customer needed engine oil. If that, or benzene, was not mentioned in the LPO he would supply up to the total value of the order.

[10] The third prosecution witness, 'Anitoni Vailea told the Court that in February 2011 he had arranged to plough the accused son's plantation. He went in his tractor to the son's residence from which the son emerged with a red tank, similar to an outboard tank, which contained diesel and which he filled into his tractor. He then went and ploughed the land.

[11] The accused, now aged 57, retired from the Police Force in 2011. He is a farmer living on Tongatapu. After describing his police service and how he came to be appointed Officer In Charge on 'Eua in 2006, he also described his general duties as Officer In Charge. At one time there had been two police vehicles but when P1160 become the only vehicle he kept it at home "safely and to make it last longer". He denied keeping it for his own exclusive use and told the Court that the vehicle was available for others to use if required. He did, however, admit that the log book only revealed use by himself.

[12] Among the accused's duties was obtaining fuel for P1160. His evidence was that he had a standing instruction to PW1 to prepare a requisition each week for 40 litres. This was the maximum allowed without special request and explanation from the Ministry of Finance. Sometimes, when he took P1160 to fill up, he found that it would not take all 40 litres. He would then go and look for a container to fill with the balance that the vehicle could not take. "Sometimes it took me two days to find a container for the fuel". The accused denied ever taking a red fuel tank similar to that used on an outboard to the bowser and denied ever receiving benzene. He pointed out that no benzene was found at his home. He took the excess fuel home because it was safer, unlike at the Police Station where security could not be guaranteed. When asked how many times he had taken excess fuel home he answered "about ten times". In cross examination, the accused admitted that he had kept no records of the amount of fuel taken home and what quantities fuel were topped up. He accepted that he had never sought permission of his superior officer on Tongatapu to take the Force's fuel home and he had never tell anyone at the 'Eua police station that this was what he was doing. In his view, being Officer In Charge at 'Eua, there was no need to seek permission or explain his actions.

[13] In answer to question from the Court the accused accepted that he knew, merely by looking at his fuel guage, that 40 litres would not fit into the vehicle's fuel tank. He estimated that the tank held about 60 litres altogether. He did not accept that one litre of fuel provides about 10 kilometers of distance but had no figure of his own to offer. The accused denied converting any fuel to his own use. He only took it home as in this way he would have a safe reserve for whenever P1660 ran low.

[14] In R v Smythe 72 Cr. App R 8, 11, after considering "a very large number of authorities going as far back as 1826" the Court explained that:

"It is a misconception to think that the circumstances of possession and its relationship in point of time to the commission of the act of theft is a material consideration only in cases of receiving, or handling as it has now become. In Cross on Evidence (5th Edn 1979) the effect of these authorities is cogently and clearly summarised at page 49. We respectfully adopt those words there used: "if someone is found in possession of goods soon after they have been missed and he fails to give a credible explanation of the manner in which he came by them, the jury are justified in inferring that he was either the thief or else guilty of dishonestly handling the goods, knowing or believing them to have been stolen... Where the only evidence is that the Defendant on a charge of handling, was in possession of stolen goods, a jury may infer guilty knowledge or belief (a) if he offers no explanation to account for his possession or (b) if the jury are satisfied that the explanation he does offer is untrue".

[15] In the present case, of course, it is not alleged that the accused stole the diesel but that having legally obtained possession of it, he dishonestly converted it to his own use, a use inconsistent with the purpose for which it was obtained. In those circumstances, it is clear that a similar principle to that explained in Smythe applies. While it is the duty of the Crown to prove all elements of the charge beyond all reasonable doubt, possession by a person of goods, in this case fuel, in circumstances which suggest conversion, calls for an explanation the value of which, if offered, is to be assessed. The question in other words is whether, sitting as a judge and jury, I find, having heard the accused's explanation for having taken this fuel home and not keeping it at the Police Station, that it might possibly be true.

[16] So far as Table A, exhibit 4 goes, I have some doubt that the figures as presented are in fact as cogent as suggested. Mr Pouono was able to makes some comparison with exhibit 7 which suggested that 10 kilometers per litre may not in fact be quite correct. There was no expert evidence as such. I take judicial notice of fact that the fuel consumption of a vehicle will vary depending on all the circumstances of its use, such as the condition of the road, the number of passengers and so on. I am not satisfied so that I can be sure that Exhibit 4 proves the actual loss claimed.

[17] On the other hand, the accused's explanation for his course of conduct made little sense. His position was that the police station had an allocation of 40 litres, no more, no less, each week whether that amount was required or not. PW1's evidence which was unchallenged was, however, that the 40 litres was the maximum which could be drawn without special permission from Finance and that there was no difficulty at all about drawing less than 40 litres. That evidence was supported by the last page of Exhibit 4 which shows that after the accused had been relieved of P1660, fuel was requisitioned at the rate of 38, 30, 40 and 60 litres per week during the period 19 March 2011 to 5 April.

Secondly, the accused's claim that he had the diverted fuel at home to provide a buffer for unexpected surges in the vehicle's use was not supported by any evidence of surges having taken place. As appears from Exhibit 4, no more than 40 litres was in fact ever required.

The suggestion that the Police Station could not provide a secure environment for the storage of a drum of reserve fuel and therefore it was necessary for the fuel to be stored in the accused's kitchen is, in my opinion, absurd.

The accused's claim that he was surprised when the 40 litres could not be fully filled into P1660 with the result that he had to go looking for a container into which to put the excess overlooks the Accused's admitted awareness and understanding of the meaning and significance of his fuel guage.

In my view, the accused knew perfectly well when he went to the bowser with his requisition for 40 litres whether or not it was likely that the whole amount could be filled into the tank.

PW2's evidence which I found to be truthful and independent was the accused would arrive with a red outboard tank in P1660 ready to take the excess fuel. I accept that evidence which found some support in the evidence of PW3 which has already been summarized.

[18] I am satisfied that the accused's explanation for having diesel belonging to the Police Service at his home is untrue. I am satisfied beyond reasonable doubt that he converted this fuel to his own use. The remaining questions are, how much fuel was converted and what is its value?

[19] I have already questioned the reliability, to the required standard, of the calculations in Exhibit 4. PW2's evidence was not sufficiently exact to provide the basis for a reliable calculation. On the accused's own evidence, however, he had taken excess fuel home on about 10 occasions. At the rate of 10 x 20 litres, the amount converted would be 200 litres. At the approximate rate of $2.70 per litre the value of*
the fuel converted is approximately $546.

[20] Result:

I find the accused guilty of converting approximately 200 litres of diesel to his own use valued at approximately $546.00.

N. Tu'uholoaki
CHIEF JUSTICE

NUKU'ALOFA: 13 September 2013