Police v Tapuolo [2015] WSSC 6 (6 February 2015)

IN THE SUPREME COURT OF SAMOA
Police v Tapuolo [2015] WSSC 6

Case name:	Police v Tapuolo
Citation:	[2015] WSSC 6
Decision date:	6 February 2015
Parties:	POLICE (prosecution) v FOIMAI TAPUOLO (accused)
Hearing date(s):	22 January 2015 and 4 February 2015
File number(s):	S2425/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Charge is dismissed
Representation:	F Lagaaia for prosecution E Niumata for accused
Catchwords:	theft by a person under a special relationship – fraudulent dealt with property – theft – had possession of or control over property –elements of theft - lottery – failing to account – knowledge of obligation – dealing with property -
Words and phrases:	“fails” - “deals“ - intentionally”.-“negligently fails” - “negligently deals”- “intentionally fails” - “intentionally deals”
Legislation cited:	Crimes Act 2013 s.162
	Crimes Act 1961 (NZ)
Cases cited:	Carlill v Carbolic Smokeball Co [1893] 1QB 256; Clemett, Robert v New South Wales Lottering Corporation [2011] NSWSC 121Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876 Mead v The Queen [1972] NZLR 255 New South Wales Lotteries Corporation v Kuzmanovski [2011] FCAFC 106, Nisbet v R [2011] NZCA 285 Norris v R [2013] NZCA 526, [31] Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1952] 2 QB 795. R v Douglas [2012] NZHC 1746, [149] R v Nisbet [2011] NZCA 285 R v Scale [1977] 1 NZLR 178 R v Sullivan [2014] NZHC 250, [456]Wild J R v Whale [2013] NZHC 731, [58] R v Kimbrough [1918] 41 DLR 40 R v Prestney [2002] NZCA 236 R v Reisterer [1962] NZLR 1040, 1043
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S2425/14

BETWEEN

P O L I C E
Prosecution

A N D

FOIMAI TAPUOLO male of Salelesi, Tiavea and Salelologa.
Accused

Counsel: F Lagaaia for prosecution

F E Niumata for accused

Hearing: 22 January 2015 and 4 February 2015

Judgment: 6 February 2015

JUDGMENT OF SAPOLU CJ

The charge

1. The accused Foimai Tapuolo of Salelologa is charged that at Salelologa between the 26th and the 27th of July 2014, he fraudulently dealt with property, namely, the amount of $1,650 being part of the winnings of one Rosa Ainuu in a lottery, by failing to account for the said amount to Rosa Ainuu as he was required to do, thereby committing the crime of theft by a person under a special relationship pursuant to s.162 of the Crimes Act 2013. I must point out that even though the word “theft” is used in s.162 (2), fraud or dishonesty is not an element of the offence of theft by a person in a special relationship that the prosecution has to prove. In Tallentire v R [2013] 3 NZLR 549 where the New Zealand Court of Appeal dealt with an appeal concerning s.220 of the Crimes Act 1961 (NZ) which creates the offence of theft by a person in a special relationship, the Court said at [54] and [57]:
   • “[54] The Judge correctly noted that the Crown did not need to prove dishonesty. Accordingly the foundation for liability is the fact of intentionally dealing with property otherwise than in accordance with requirements that the accused knew to have been imposed in relation to that property by another person.

...

“[57] A key aspect of the s.220 offence is that there is no requirement for the Crown to establish dishonesty”.

2. The use of the word “fraudulently” in the charge is therefore unnecessary and may convey the mistaken impression that fraud or dishonesty is an element of the offence that the prosecution has to prove.

Section 162 of the Crimes Act 2013

3. Section 162 of the Crimes Act 2013 under which the present charge is brought provides:

“(1) This section applies to any person who has received or is in possession of, or has control over, any property on terms or in circumstances that require the person:

“(a) to account to any other person for the property, or for any proceeds arising from the property; or’
“(b) to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person.

“(2) A person to whom subsection (1) applies commits theft who fails to account to the other person as so required or deals with the property, or any proceeds of the property, otherwise than in accordance with those requirements.

“(3) This section applies whether or not the person was required to deliver over the identical property received or in the person’s possession or control.

“(4) For the purposes of subsection (1), it is a question of law whether the circumstances required any person to account or to act in accordance with any requirements”.

4. Section 162 is identical to s.220 of the Crimes Act 1961 (NZ), except for subsection (2) where the words “fails” and “deals” used in the New Zealand provision are both immediately preceded by the word “intentionally”. Our s.162 (2) does not contain the word “intentionally”. However, this should not make any difference to the elements of the offence to be proved under the two sections. I am of the view that the words “fail” and “deal” used in our s.162(2) should also be interpreted as being immediately preceded by the word “intentionally” so that a person who “negligently fails” to account to another person or “negligently deals” with property or the proceeds of property should not be held to be criminally liable. Criminal liability should only attach where a person “intentionally fails” to account to another person or “intentionally deals” with property or the proceeds of property in terms of subsection (2).

The elements of theft by a person in a special relationship

5. The elements of theft by a person in a special relationship which the prosecution has to prove beyond reasonable doubt are set out in the New Zealand cases of Tallentire v R [2012] NZCA 610, [51], [67]; R v Douglas [2012] NZHC 1746, [149], per Wild J; Norris v R [2013] NZCA 526, [31]; R v Whale [2013] NZHC 731, [58], per Lang J; R v Sullivan [2014] NZHC 250, [456], per Heath J. For the purposes of this case, these elements may be stated as follows:
   • (a) the accused had possession of or control over property;
   • (b) the accused was subject to an obligation to deal with the property, or proceeds from the property, in accordance with the requirements of any other person,
   • (c) the accused knew of that obligation; and
   • (d) the accused intentionally dealt with the property in a manner that he knew and intended to be in breach of that obligation

Possession or control

6. For the purposes of s.162, the question of whether a person was in possession of, or in control over, property is one of fact. A person would have control over property if he is in a position to determine how the property would be used: R v Douglas [2012] NZHC 1746, [202] – [203], per Wild J; R v Whale [2013] 731, [59], per Lang J; R v Sullivan [2014] NZHC 2501, [459], per Heath J.

Obligation to deal with the property in accordance with the requirements of another person

7. In relation to the circumstances which could require a person to deal with property or the proceeds of property in accordance with the requirements of another person, the New Zealand Court of Appeal said in Nisbet v R [2011] NZCA 285, [13] and [33]:
   • “[13] Liability cannot arise under s.220 unless the circumstances required the accused to deal with property in accordance with the requirements of another person. Section 220 (4) provides that it is a question of law whether the circumstances give rise to that obligation on the part of the accused.
     • ...
   • “[33] We conclude that a requirement will be established under s.220 (4) if the facts relied upon by the Crown establish a contractual obligation on the part of the accused to deal with property in a particular way. Whether or not it will arise from a fiduciary relationship will depend upon the circumstances. We leave open, because it does not arise in the present case, the possibility that the requirement might otherwise be imposed by law”.
8. In Norris v R [2013] NZCA 526, a differently constituted New Zealand Court of Appeal when discussing Nisbet v R [2011] NZCA 285, said at [37]:
   • “[37] The requirements of s.220 were discussed more recently in Nisbet v R [2011] NZCA 285. This made it clear that the section applied ‘if a person agreed to take money on terms requiring it to be paid to a third person and then failed to do so’. Those terms could be ‘merely contractual’”.
9. For the purposes of this case, it is clear from Nisbet v R and Norris v R that if a person was under a contractual obligation to deal with property in accordance with the requirements of another person, s.220 (4) will be satisfied. However, it must be noted that in R v Nisbet [2011] NZCA 285 the Court held at [28] that in order for the offence under s.220 to be established, the obligation must be more than a mere debt. This is because in R v Scale [1977] 1 NZLR 178, the Court of Appeal had said at p.181:
   • “It has been accepted by this Court that in order to establish that an accused person has received money on terms requiring him ‘to account for or pay it’ to some other person the Crown must establish that the circumstances impose on the person by whom the money is received an obligation which is more than a mere debt: Mead v The Queen [1972] NZLR 255”.

Knowledge of obligation

10. The Court in R v Whale [2013] NZHC 731, [63], pointed out that the issue of whether or not a person knew that he or she was subject to an obligation to deal with property in accordance with the requirements of any other person is an issue of fact that may be inferred from the surrounding circumstances.

Dealing with property otherwise than in accordance with the obligation

11. As already pointed out in para 4 of this judgment, the word “deal” in the context of s.162 must mean “intentionally deal”. It is also pointed out in R v Whale [2013] NZHC 731, [64] – [65], that the fact of intentionally dealing with property otherwise than in accordance with the requirements that the accused knew to have been imposed in relation to that property by another person can be inferred from the surrounding circumstances. Usually there will be no direct evidence of such intention.

Any other person

12. In relation to the phrase “any other person” which was used in the predecessors of s.220 and is again used in s.220, it would appear that the phrase includes a person from whom property is received. This is clear from R v Reisterer [1962] NZLR 1040 where the New Zealand Court of Appeal said at p.1043:
    • “It is true that in Canada, where a section in the same terms appears in the Criminal Code, difficulty appears to have arisen relating to the meaning of the words ‘any other person’ in the section, and there has been a difference of opinion as to whether the liability to pay or account must not be to some person other than the person from whom the ‘thing’ was received. See R v Kimbrough [1918] 41 DLR 40. We think the better view is that the phrase ‘any other person’ means merely any person other than the accused person”.
13. In R v Prestney [2002] NZCA 236 where the New Zealand Court of Appeal dealt with an appeal under s.222 of the Crimes Act 1961 (NZ) which was the immediate predecessor of s.220, Blanchard J in delivering the judgment of the Court accepted at [22] the meaning given in R v Reisterer [1962] NZLR 1040, 1043, to the phrase ‘to any other person’ as ‘merely any person other than the accused person’. I have decided that the phrase ‘any other person’ used in s.162 of our Crimes Act 2013 carries the same meaning.

Lottery

14. There was no dispute that the ‘ponesi’( bonus game) in this case is a game of chance and is a ‘lottery’. In my view, when the accused made known to the public that he was operating a game of ponesi, that was an invitation to treat by him. When a member of the public pays over money to the accused for a bet, that is the offer. When the accused accepts the money and records the bet, that is acceptance of the offer. A contract, sometimes referred to as a ‘contract of chance’, comes into existence at that time. This analysis follows the English cases of Carlill v Carbolic Smokeball Co [1893] 1QB 256; Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1952] 2 QB 795. Also see, for example, the Australian cases of Kuzmanovski v New South Wales Lotteries Corporation [2010] FCA 876 reported on appeal as New South Wales Lotteries Corporation v Kuzmanovski [2011] FCAFC 106, and Clemett, Robert v New South Wales Lottering Corporation [2011] NSWSC 121. Even though these Australian cases were dealing with a lottery statute, they do show that the relationship between a purchaser and vendor of a lottery ticket lies in contract giving rise to contractual obligations.

Background

15. The accused runs a game of “ponesi” (bonus) at Salelologa. It is a game of chance. It is called the “Hope and Cash Bonus”. Both counsel accept it is a form of lottery. The accused’s ponesi consists of two types of games. One game is called the single bonus number (Maa Tasi) and the other game is the two bonus numbers (Maa Lua). Any person can play either the single bonus number or the two bonus numbers or both. The offence with which the accused is charged is concerned with the single bonus number game or Maa Tasi and not the two bonus numbers game or Maa Lua. It is therefore unnecessary to go into detail as to how the two bonus numbers game ( Maa Lua) is played.
16. Any person who wants to play the accused’s single bonus number game would place a bet on any number from 1 to 35. This will be his bonus number. The price for each bet is $5. You may also place more than one bet on a single bonus number and pay $5 for each bet. The winning prize for each bet is $150. If, for example, you wish to place a bet on number 10 as your bonus number, you pay $5 for that bet. And if you wish to place twenty bets on number 10 as your bonus number, you pay $100 or $5 for each bet. If you place only one bet and it turns out that number 10 is the winning bonus number, you will win the prize money of $150. But if you have placed twenty bets on number 10, your winning prize money will be $3,000, that is, $150 for each bet multiplied by twenty bets.
17. How the winning bonus number is determined depends on the results of the National Lotto which is drawn on every Saturday night. Six numbers are drawn every Saturday night to determine whether anyone has won the National Lotto. The seventh number that is drawn is the bonus number. That is the same bonus number which will be the winning bonus number in the accused’s single bonus number game.
18. The prosecution called three witnesses for this case. The accused elected not to give or call evidence. The evidence adduced by the prosecution shows that the prosecution witness Situfu Sione (Situfu) had been handling the accused’s single bonus number game up to the draw on Saturday night 19 July 2014. After that, the accused handled the single bonus game for Saturday night 26 July 2014. For each game, Situfu would write down on papers the name of each player or his or her pseudonym and the bets placed by each player on any of the bonus numbers from 1 to 35. Situfu testified that after each game on a Saturday night, the names of the players and the numbers they have betted on would be transferred and written down on new papers for the game on the following Saturday night. Payments for the bets would be collected from the players on a later day. When a bet is paid, that bet would be highlighted to show that it has been paid. Situfu’s evidence also shows that if a player no longer wants to bet on a particular bonus number for the game on the following Saturday night, then that number would be sold to someone else. Likewise, if a player wants to reduce his or her bets on a particular bonus number for the next game, the numbers which would thereby become available would be sold to someone else. When the accused handled the single bonus number game after the draw on 19 July 2014, he transferred the names of the players who had played for the draw on 19 July 2014 and their bets to new papers for the draw on Saturday night 26 July 2014.
19. The complainant Filirosa Ainuu had been a regular player at the accused’s single bonus number game. For the game on Saturday night 19 July 2014, she placed twenty three bets on bonus number 1, three bets on bonus number 13, eighteen bets on bonus number 14, eight bets on bonus number 23, and twenty eight bets on bonus number 32. In other words, for the one bonus number game on 19 July 2014, the complainant played five bonus numbers, that is, numbers 1, 13, 14, 23, and 32, and placed and paid for a total of eighty bets. At the price of $5 a bet, she must have paid a total sum of $400 for those bets.
20. The same bonus numbers and number of bets played by the complainant for the game on 19 July 2014 were transferred by the accused to the papers he prepared for the game that was to be drawn on Saturday night 26 July 2014. The prosecution witness Nive Papalii (Nive), who was employed by the accused to handle his two bonus numbers game (Maa Lua), testified that on Saturday 26 July 2014, the complainant called her on her cellular phone at the Salelologa Market and gave her instructions to drop her bonus number 14 as she did not have enough money but to play all her other numbers. The witness Situfu who was standing next to Nive at the time overhead what the complainant was saying to Nive on the phone and confirmed in his evidence the instructions given by the complainant to Nive.
21. Later on that same day, Nive received from the complainant an envelope containing $555. It appears from Nive’s evidence that $250 of that amount was for the complainant’s two bonus numbers game, $50 was for other bets by the complainant, and $255 was for the complainant’s bets on the single bonus number game. Nive later passed on to the accused those instructions from the complainant to drop her bonus number 14 but to play all her other numbers. It also appears from the evidence that the accused did receive the sum of $255 given by the complainant to Nive for her single bonus number game to be drawn on Saturday night 26 July 2014.
22. Confusion then comes in at this point of the evidence. As earlier mentioned, the complainant placed and paid for eighty bets on five different numbers, namely, 1, 13, 14, 23 and 32 for the single bonus number game that was drawn on Saturday night 19 July 2014. Of those eighty bets, eighteen bets were placed on number 14 which the complainant had instructed Nive to drop but to play all her other numbers. If the eighteen bets which the complainant played on 19 July 2014 on number 14 were dropped from the game for 26 July 2014, only sixty two bets would remain for numbers 1, 13, 23, and 32 that had been transferred from the game on 19 July 2014 for the game on 26 July 2014. At $5 a bet, the complainant should have paid $310 for those sixty two bets. But she paid only $255 which would cover only fifty one bets. The question then arises, which of the sixty two remaining bets were to be covered by the $255 paid by the complainant. The answer must be, the evidence is totally silent on that. This is because of the instructions given by the complainant to drop her number 14 with eighteen bets from the draw on 19 July 2014 but to play all her other numbers meaning numbers 1, 13, 23, and 32 with a total of sixty two bets from 19 July 2014.
23. The complainant’s evidence suggests that when she gave her instructions to the witness Nive to drop her number 14 but to play all her other numbers what she meant was to play only her ‘usual numbers’ (Maa Tuli) which were numbers 1 and 32. The problem is that, if that was the complainant’s true intention, the instructions she gave to Nive and which Nive passed on to the accused did not convey that intention. There was no mention by the complainant in her instructions that only her usual numbers were to be played and that her usual numbers for the single bonus number game (Maa Tasi) were 1 and 32.
24. Even if the complainant’s evidence is to be accepted, Nive’s evidence was that she had only been handling the accused’s two bonus numbers game (Maa Lua). She had never handled the single bonus number game (Maa Tasi). So Nive would not know what were the complainant’s usual numbers for the single bonus number game. There is also no evidence that the accused who had just handled for the first time his own single bonus number game for the draw on 26 July 2014 knew of the complainant’s usual numbers because it was the witness Situfu who had been handling the single bonus number game up to the draw on 19 July 2014. The only material that was before the accused, as the evidence shows, to show what were the numbers the complainant had previously betted on were the papers for the game drawn on 19 July 2014. Those papers show that the complainant had betted on numbers 1, 13, 14, 23, and 32 for the game on 19 July 2014 without showing what were the complainant’s usual numbers or that the usual numbers played by the complainant were 1 and 32.
25. I should also mention that the complainant’s evidence that she used her two cellular phones numbers to place her bets for the single bonus number game is not correct. She actually used three cellular phone numbers. This is clear from the entries and bets in the papers that were prepared for the two games drawn on 19 July 2014 and 26 July 2014 which were produced in evidence by the prosecution. Apart from the two phone numbers mentioned by the complainant, there is another phone number which appears from the evidence of Nive and which Nive testified was always used by the complainant to communicate with her. All those three phone numbers appear in the papers that were prepared for the two games on 19 July 2014 and 26 July 2014.
26. According to the evidence of Situfu and Nive, at 4:30pm in the afternoon on every Saturday, all the bets that were paid or unpaid, would be turned in at the house of the accused before the game is drawn in the evening. The bonus numbers on which no bets have been placed or paid would be sold straightaway to other people. The paper that had been prepared by the accused for the game on 26 July 2014 show that all of the complainant’s eighteen bets on number 14 which had been transferred from 19 July 2014 had been crossed out. This must be because of the complainant’s instructions to Nive to drop her number 14. The same paper also shows that all of the complainant’s three bets on numbers 13, eight bets on number 23, and twenty eight bets on number 32 had been highlighted which confirms that they had been paid for. However, of the twenty three bets on number 21, twelve of them have been highlighted to have been paid by the complainant and eleven of them have been highlighted under the name “Sikaku”. By excluding from the complainant those eleven bets under number 1, that means a total of fifty one bets remained and were highlighted to have been placed and paid by the complainant for the game on 26 July 2014. At $5 a bet, the total money for those fifty one bets would be $255. This tallys with the sum of $255 that the complainant had given to Nive with the instructions to drop her number 14 but to play all her other numbers.
27. Counsel for the accused submitted that what had happened in this case was a miscommunication from the complainant to Nive. If the complainant’s true intention when she gave her instructions to Nive was to play all her bets on numbers 1 and 32, she should have specified that in her instructions. But she did not do so. As it happened, when Nive passed on the complainant’s instructions to the accused and the accused received only $255 for the complainant’s bets, the accused must have decided to sell eleven of the twenty three bets on number 1 that had been transferred from 19 July 2014 under one of the complainant’s phone numbers to the game for 26 July 2014. Not to do so, would have meant that the complainant would be allowed to play a total of sixty two bets even though she had paid only $255 which was the total price for only fifty one bets. So what had happened here was a miscommunication and misunderstanding between the complainant and the accused. It was just unfortunate for the complainant that the eleven bets that were sold in order to make the number of the complainant’s playable bets meet with the amount paid of $255 were in relation to number 1 that turned out to be the winning number. It also appears from the submissions of counsel for the accused that this must have happened before the National Lotto was drawn on Saturday night 26 July 2014. However, the accused did not have to sell those eleven bets to another person. He could simply have crossed out any of the complainant’s eleven bets in order to make the number of the complainant’s playable bets comply with the amount paid of $255.
28. When the National Lotto was drawn on Saturday night 26 July 2014, the winning bonus number was number 1. This meant that the winning number for the accused’s one bonus number game was also number 1. On Sunday morning 27 July 2014, the complainant went to the accused’s home for her winning prize money. She expected to collect $3,450 for the twenty three bets she claims to have placed on number 1. She was disappointed when the accused gave her only $1,800 and told her that eleven of the bets that had been under one of her phone numbers for number 1 had been sold to a person named Sikaku which appears from the papers that had been prepared for the draw on 26 July 2014.
29. When the complainant disputed her wining prize money of $1,800 and told the accused that she should have been paid $3,450 for the twenty three bets she had placed on number 1, the accused further responded that as eleven of the bets on number 1 had been sold to one Sikaku, he would need to talk to the witness Situfu. The accused then left his house to get Situfu while the complainant waited in his house.
30. Situfu testified that the accused did come to his house on Sunday morning 27 July 2014. He said that as they were driving from his house to the accused’s home, the accused said to him that when they meet with the complainant, to tell the complainant that a man named Sikaku had paid for the other bets on number 1. Situfu also testified that when he asked the accused who is Sikaku, the accused replied that all he has to say to the complainant is that the other bets on number 1 had been purchased by Sikaku between 3pm and 4pm on Saturday. When Situfu responded that he was not handling the single bonus number game as he was selling the bets for the two bonus numbers game and that the complainant would get angry, the accused replied that that is something for him to use brains on. Situfu further testified that he also told the accused that he had not sold any bets for the single bonus number game on 26 July 2014 and had not met any person by the name of Sikaku.
31. This part of Situfu’s evidence would seem to suggest that the accused had urged Situfu to lie to the complainant that eleven of the bets in relation to bonus number 1 which had been betted by the complainant on 19 July 2014 and later transferred to the complainant for the game on 26 July 2014 had been deliberately blocked out in the name of Sikaku so that the accused would not pay out $3,450 to the complainant for twenty three bets on number 1. However, as earlier mentioned, when the complainant instructed Nive to drop her number 14 but to play all her other numbers, there were sixty two bets available in relation to all those other numbers. The complainant paid only $255 for her bets in relation to all those other numbers. That was not enough to cover all the sixty two available bets. There were still eleven more bets in relation to the complainant’s remaining numbers that were not paid. So even if the inference is drawn that the accused had not sold eleven bets on number 1 to the person named Sikaku, it was still open to the accused to cross out any eleven of the complainant’s bets so that the number of her playable bets would tally with the $255 she had paid. There is also no evidence that those eleven bets were only noted under the name of Sikaku after the National Lotto had been drawn. So the circumstances of this case can also give rise to the inference that the accused had noted eleven bets under the name of Sikaku so that the number of playable bets by the complainant would correspond with the amount of $255 she had paid. It would not be fair or just to expect the accused to play all the sixty two bets when the complainant had paid for only fifty one bets.

Relating the evidence to the elements of the charge

(a) Possession or control

32. The defence does not dispute that the accused was in possession and also in control of the $255 paid by the complainant for her bets on all her numbers except for number 14 she had asked Nive to drop as she did not have enough money. The prosecution has therefore proved beyond reasonable the first element of the charge of theft by a person in a special relationship, namely, that the accused was in possession or control of the property of another person.

(b) Obligation to deal with the property in accordance with the requirements of another person

33. The second element of the charge that the prosecution has to prove beyond reasonable doubt is that the accused was under an obligation to deal with the property in accordance with the requirements of another person. The relationship between the purchaser and vendor of a lottery ticket lies in contract. As a contractual relationship, it gives rise to contractual obligations. It is the same with the relationship in this case between the complainant as purchaser of bets in the accused’s single bonus number game and the accused as vendor of bets either through himself or a selling agent.
34. The difficulty in this case is that the offer that was made by the complainant did not correspond with any acceptance by the accused. That is because of the instructions given by the complainant to Nive to drop her number 14 but to play all her other numbers. Those other numbers were numbers 1, 13, 23, and 32. The complainant had sixty two bets under those other numbers but she paid $255 which was only enough to cover fifty one bets. The accused therefore could not have been under a contractual obligation to deal with the $255 in accordance with the requirements of the complainant to play all her other numbers because the money that she paid was not enough to cover all the sixty two bets. The $255 would cover only fifty one bets. The prosecution has therefore not proved the second element of the charge beyond reasonable doubt.

(c) Knowledge of obligation

35. The third element of the charge that the prosecution has to prove beyond reasonable doubt is that the accused knew that he was subject to an obligation to deal with property in accordance with the requirements of any other person. In the context of this case, this means that the prosecution must prove that the accused knew that he was subject to a contractual obligation to deal with the $255 paid by the complainant in accordance with the requirements of the complainant which were to drop number 14 and to play all her other numbers.
36. In my opinion, the accused could not have known that he was under an obligation to play all the sixty two bets that were available to the complainant under her other numbers when the $255 paid by the complainant was only enough to cover fifty one bets. The action by the accused of excluding eleven of the bets available to the complainant under number 1 shows that the accused did not think that he was subject to an obligation to play all sixty two bets as implicit in the complainant’s instructions to Nive but to play only fifty one bets pursuant to the $255 that the complainant paid. It would not be fair or just to impose on the accused an obligation to deal with the $255 as if the complainant had paid for sixty two bets when in fact she had paid for only fifty one bets. The prosecution has therefore not proved the third element of the charge.

(d) Dealing with property otherwise than in accordance with the obligation

37. In terms of the fourth element of the charge, the prosecution must prove that the accused intentionally dealt with the $255 paid by the complainant otherwise than in accordance with the requirements that the accused knew to have been imposed in relation to that money by the complainant. Given the conclusions that I have reached on the second and third elements of the charge, it must necessarily follow that the prosecution will also not be able to prove the fourth element of the charge beyond reasonable doubt.

Conclusion

38. As the prosecution has not proved the second, third, and fourth elements of the charge beyond reasonable doubt, the charge is therefore dismissed.
    

Honourable Chief Justice Sapolu