Namatak v Public Prosecutor (No. 1) [1986] VULawRp 4; [1980-1994] Van LR 274 (4 March 1986)

[1980-1994] Van LR 274

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

Appeal Case No. 7 of 1985 (No. 1)

BETWEEN:

JONAH ROBERT NAMATAK
Appellant

AND:

PUBLIC PROSECUTOR
(Respondent)

[No. 1]

Coram: Cazendres J
Williams J

Counsel: Mr Dickenson, Public Prosecutor
Mr P Coombe for appellant

JUDGMENT

[CRIMINAL LAW - EVIDENCE - voluntary statements, admissibility - STATUTES - interpretation in Vanuatu]

The Appellant who was convicted of 7 counts of theft contrary to section 125 (a) of the Penal Code and 7 counts of false accounting contrary to section 130 (ii) of the Penal Code 1983 on 5th December 1985, was sentenced to 10 years imprisonment on each count. The total sum involved according to the charges was about 6,700,000VT. Even when one reduces it to dollars it is a very formidable total of $70,000 or thereabouts.

He had pleaded not guilty and now he appeals against his conviction and sentence on all counts.

Mr Coombe appeared for the Appellant and he applied himself to the appeal with commendable zeal, industry and argument. We were impressed by his approach and comments. The Prosecution were equally ably represented by Mr Dickenson and we considered ourselves fortunate to be assisted by their competent advocacy.

We observe that theft is defined by section 122 (1) of the Penal Code but it is section 125 (a) which states that it is an offence.

Mr Coombe in ground 3 of the appeal refers to two alleged confessions made by the accused. He drew attention to the ill-treatment and very unpleasant circumstances under which the Appellant complained that he had been held in custody. In that time when suffering from those effects he says he was brow beaten and made his alleged confessions.

Mr Dickenson draws attention to the evidence of Mr L.J. Wright, an accountant in the Accountant General's Department. He gave evidence of the accused's first interview with the police under caution. At that stage Mr Coombe objected to any evidence being led on the ground that it was not made voluntarily.

At that stage, the learned judge should have indicated that anything said by the Appellant should not be referred to in the presence of the assessors until the issue of voluntariness had been decided. Unfortunately two oral answers of the Appellant amounting to admissions of using some money for non-Government purposes were let in. It was also unfortunate that Mr Wright should say that the accused admitted making the purchases or payments. The use of the word "admitted" could have been regarded as a admission of guilt.

However, the accused made a written statement, Exhibit 14, which at that stage was not let in except for later identification. Later in the proceedings it became the subject of a voir dire and the Appellant contended he wrote it under police pressure. Mr Wright said he saw the Appellant sit quietly down and write it and that there was no pressure or inducement. The learned Chief Justice believed Mr Wright and concluded that that statement was voluntary. It was apparent that if Mr Wright was truthful, the Appellant was untruthful and of course that could reflect upon his veracity in opposing the admission of the second statement. The learned Chief Justice concluded that the second statement was voluntary and in our view it is simply complementary to the first statement, i.e. Exhibit 14.

Therefore, although Mr Wright's reference to the oral admissions of the Appellant should not have been let in as mentioned by me earlier the Appellant was not put to any disadvantage thereby, because his written voluntary statements confirmed them.

We find that ground 3 is not supported and reject it.

On the first and second grounds, Mr Coombe did not challenge the evidence or its weight. He argued very strongly that it did not support the particular charges directed against the Appellant.

In regard to the theft charges, counts 1 to 7, he drew attention to the wording of section 122 (1) and (2) of the Penal Code and that of section 1 (1) and (2) of the Larceny Act 1916 (U.K). The wording in both Acts is for all practical purposes identical and Mr Coombe then led us through the labyrinth of cases decided in England on the English approach to those offences. He argued that if the Appellant was a bailee then it would be his duty to look after the exact coin he had received. Of course it would be impossible for the Prosecution to show what was the exact coin which the Appellant had received.

We do observe that Vanuatu has its own Penal Code. No matter what laws the draftsmen used for guidance, they are nevertheless to be construed in Vanuatu and against its background and not the learned lawyer's references to interpretations of similar enactments in foreign countries with much different standards and cultures.

Sections 122 (1) and (2) read as follows:-

"122 (1) A person commits theft who, without the consent of the owner, fraudulently and without claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof;"

"122 (2) A person shall also be guilty of theft of any such thing notwithstanding that he has lawful physical control thereof, if, being a bailee or part owner thereof he fraudulently converts the same to his own use or the use of any person other than the owner."

Section 122 (2) makes it apparent that section 122 (1) reads that theft is an act directed against possession of property.

Mr Coombe, in reference to section 122 (2) submits that the Appellant was not a bailee of the money he received and therefore he could not be guilty of theft of it.

That argument of Mr Coombe is that the Appellant having been put in possession of a large amount of Government money could not be said to have stolen it because if he were in possession, he was not in the circumstances a bailee and he could only steal it if he were a bailee. A bailee must be intended to deliver up the identical thing entrusted to him before he can be charged with theft, so Mr Coombe argues. He points out that the Appellant did not have to deliver up possession of the identical coin he had received and therefore he cannot be charged for theft. His submission pre-supposes that the money was not in the possession of the Vanuatu Government when the Appellant misappropriated it.

The Tafea Local Government Council was a limb of the Government in regard to receipt and payment of Government monies. They employed the Appellant to do that work for them.

In our view, when the Appellant received sums of money from the Government, the money did not pass out of Government control. The Appellant received the monies for a specific purpose, i.e. to use it for the Government's benefit by paying it out in wages to Government employees and to meet other Government charges. According to the Prosecution evidence, which the Court believed and which is not now challenged on appeal, all the sums in counts 1 to 7 relate to monies which were sent to the Appellant by the Government and which he is shown to have signed for. The Government never at any time relinquished control over that money. It matters not that it may have come as cheque and was converted to cash.

The exercise of Government control is demonstrated by their employment of auditors to check the Appellant's accounts and to ensure that he was using the money for the purposes for which it was intended to be used.

Whenever the Appellant used any of that money, he could only do so honestly by applying it for a Government purpose. He was not a bailee in the sense that he had to hold it and return it to Government. At all times, in our view, the money was in the constructive possession of the Vanuatu Government. It is clear that at any time the Accountant General in Port Vila could have gone to the Appellant and demanded that he hand to him all the money he had received from the Government. Such an action would not be a resumption of possession by the Government of monies sent to the Appellant but simply moving it from one packet to another, so to speak. The Government cannot hold all its money in the hand of one person who for convenience is described as "Government". The Government holds its money in the hands of many departments and the employees thereof. If those people use the Government money which is under Government control for their own purposes, they are stealing. When it passes from on Government agent to another, the Government is not relinquishing control.

If I give money to A to pay to B, C and D and if A uses it for his own purposes, he has stolen my money.

The Appellant was in no different position when the evidence is sifted.

We are in a newly emerging nation which was jointly administered by France and England according to French and English laws. Vanuatu no longer, relies upon Westernised sophistication and must develop its own approach. The Courts should not be quick to grasp at hair splitting technicalities. At the same time, they should never endeavour to "manufacture laws" to cover some difficult situation unless they keep within the provisions of the Constitution.

Ground of Appeal 1 is rejected.

The second ground of appeal is to the effect that the Appellant was not a public officer and the charges 8 to 14 are erroneous when they allege that as a public officer with responsibility for accounts, he made false entries with intent to defraud.

The false entries in counts 8 to 14 relate to the sums stolen in counts 1 to 7, but not necessarily in the same order.

The charges are laid under section 130 (ii) of the Penal Code. The persons who can be charged under section 130 (ii) are described by reference to their occupations in paragraphs (a), (b) and (c) of section 130. In every case, the person is someone's employee. Mr Coombe's submission, if I understand him correctly, is that the Appellant may have been properly charged under 130 (c) as an "officer, clerk, or servant of any employer whatever." It appears to us that 130 (c) virtually embraces the class of employee referred to in (a) and (b).

We do not think that it is fatal to charge the Appellant as a public servant and then prove that he was an employee of a different kind.

The books he falsified were Government account books. Even if, as a Tafea servant he falsified Government books with intent to defraud a third party, the offence would still have been made out.

He certainly had responsibility for accounts; the duty was owed to the Government, they were Government accounts, it was entirely Government business. To that extent he was performing a task for Government.

The evidence shows that being an employee of Tafea Council, he fraudulently failed to account, i.e. falsified the accounts. In our view, that is sufficient to make out the offence.

The third ground fails.

The fourth ground is a complaint that the assessors were not directed as to the necessary mens rea for false accounting.

The Respondent, Mr Dickenson, whilst accepting the absence of a direction on mens rea, referred to section 221 of the Criminal Procedure Code which indicates that an appeal shall not be allowed on the ground of a mis-direction unless it caused a substantial miscarriage of Justice.

There was no direction as to the meaning of an intent to defraud. As we see it, it should not be difficult for an assessor to appreciate the meaning of that intent. It is not as difficult perhaps as the mens rea to be explained in regard to forging with intent to defraud or obtaining by false pretences. The false accounting charges are directly linked to the theft charges. That must have been apparent to the assessors.

We do not think that the assessors could have been under any wrong impressions. They were mis-guided.

Ground 4 fails.

Ground 5 correctly alleges non-compliance by the judge with sections 164(2), 88, 177 (3), 185 (1) and 186 of the Criminal Procedure Code. However, it is apparent that none of those aspects have caused any miscarriage of justice. In fact Mr Coombe was at pains in relation to some of them to express his own opinion along those very lines.

Ground 5 fails.

The appeal of the accused is dismissed on all 14 counts.

With regard to the appeal against sentence, he received 10 years on counts 1, 5 and 7. The maximum is 12 years. This is not like the man who is convicted of say several charges of rape on different women; or the person who breaks into the different homes of 14 people on different occasions. Although the offences are separate, they really formed a fairly even flow of taking money from the same source. The overall deficit was about 6,700,000VT. Had it been taken in one theft the sentence may well not have been so near to the maximum which is 12 years.

We are very conscious of the Chief Justice's position. Where any type of crime is serious and prevalent, it is his duty to discourage the offenders. He can only do this by deterrent sentences.

In so doing, he needs the support of the Court of Appeal which should be slow to intervene unless there is cause.

In this case, it may be that the learned Chief Justice, after such a long trial in a remote place, may have looked upon the fourteen convictions as representing quite separate offences.

A sentence of 10 years for stealing 1,500,000VT is too severe in the case of a first offender and 5 years on count 4 for stealing 300,000VT is severe.

Each sentence should reflect the seriousness of the offence for which it is imposed.

The sentences on counts 1, 5 and 7 are reduced to 5 years each to run concurrently.

The sentences on the remaining counts of stealing are reduced to 3 years each concurrently but consecutive to the 5 years on the other counts.

That is a total of 8 years.

Regarding counts 9, 10, 11, 13 and 14, we do not in the circumstances interfere in the sentences. On the remaining counts for false accounting, we make no comment because we consider the sum total of 8 years to be adequate.

The Order of the judge relating to sums of money and motor vehicles mentioned in his Judgment is confirmed.

Dated at Vila this 4th day of March, 1986.

J. WILLIAMS
L. CAZENDRES

Order

We direct that in relation to the money and goods in the Appellant's possession, the Prosecution must if seeking restitution, apply to the Supreme Court for any orders in relation thereto.

In future, we recommend that such aspects be finally dealt with in the Court below before the proceedings are terminated.

As to the costs in the Court below, we are asked to reduce them to 50,000VT as stated in section 98 (1) of the Criminal Procedure Code.

The costs of the appeal as taxed shall be paid by the Appellant.

J. WILLIAMS
L. CAZENDRES