The appeal is on two fronts.
The first front is against conviction on the charge of larceny by a servant.
Four grounds
initially were raised but subsequently reduced to three. Ground
2 had been withdrawn during directions hearing. The three grounds
can be
condensed into one. They all pertain to the question of sufficiency of
evidence before the learned Magistrate.
That taking into account the facts
before the Court, the learned Magistrate should not have entered a guilty
verdict
against the Appellant. In other words, a reasonable tribunal sitting
in the capacity of the learned Magistrate would have found
against the
guilty verdict.
In his submissions on this
point, Mr. Manetoali conated his submissions on what he described as a
gap inap in the evidence
of the prosecution which would have caused the learned
Magistrate to return a not guilty verdict. Learned Counsel submitted
there
was no or little evidence before the Court to suggest that the amount of
$2,000-00 received by the Appellant was
not placed subsequently in the draw
box.
The crucial issue in this
appeal is whether there is evidence before the learned Magistrate of which
he could come to
the conclusion that the cash obtained by the Appellant was
never placed in the draw box. If I find there is evidence on which
the
learned Magistrate could have come to that conclusion that basically is the
end of this appeal.
I had the opportunity to
go through the evidence before the learned Magistrate carefully ully and come to
the clear conclusion
that there was in fact evidence on which the learned
Magistrate could have arrived at that conclusion or finding.
There is clear evidence from
PWII, the General Manager of Honiara Casino who introduced video camera
surveillance evidence
of the transactions covering the relevant period of
the 13th March 1998. That evidence had not been objected to and
was actually admitted as evidence before the Court. The relevant parts
of
the transactions alleged to have taken place at that particular time between
the hours of 1800 and 1900 were actually
viewed by the Court. According to
the undisputed evidence of PWII, as introduced via the video camera, no cash
was observed
to have been put in the draw box after the Appellant had cashed
the cheque from PW(VII). I have pointed out that no challenge
was ever made
as to the admissibility of the video camera surveillance evidence and so it
is not open now to the Appellant
to raise any objections or challenge as to
the correctness and accuracy of what was contained in those video cassettes.
The evidence as contained in those video cassettes actually confirmed the
transactions which took place that time as given
by those witnesses who were
actually present at the said time. According to that evidence no cash was
actually seen being
dropped into the draw box by this Appellant until the
arrival of a supervisor who took stock of the cash. That evidence has
never
been challenged in cross-examination by the Appellant. That must be
construed against him.
Secondly, this Appt had
never adduced any positive evidence before the Magistrates' Court to say
that he did place
the money in the draw box. All he could come up with on
this issue is to make a suggestion that he may have placed the money
in the
draw box, but with no evidence in support whatsoever. His excuse was that he
could not recall the events which
occurred that night. With respect, that is
a common excuse often used by a person with a guilty conscience. How could
he have easily forgotten what happened to such a large sum of money cashed
that particular evening when there is every reason
for him to recall. There
were only two persons who were at the VIP area that evening. He was sacked
only five days later
for misappropriating the said sum. How could he easily
have forgotten such a clear transaction?
There is also clear eve
from the persons who were present that night as to the various transactions
w which took place.
No dispute or challenge had been raised as to the
procedures carried out at the Casino when a cheque is signed and used by
a
player to gamble. In this case, there was clear evidence the cheque signed
by Ms.
Ruth Rebaio [PW (v)]
was exchanged for two $500-00 chips and ten $100-00 chips. What should
have happened then would have been for a cheque credit
voucher ("CCV") to be
given to the player for his signature before that CCV is dropped into the
draw box to
even out the chips issued in exchange to the player. The player
should also be required to sign on receipt of the chips. There
was clear
evidence before the learned Magistrate which showed that none of these
simple requirements were complied with.
What can
be concluded from these transactions and which was open to the learned
Magistrate to make conclusion on the evidencedence
before him was that the
cheque having been exchanged for value by way of a CCV and chips worth the
value of the cheque
should never have been cashed by this Appellant. But
that was the very thing he did as adduced in evidence before the learned
Magistrate. PW 11 conceded in evidence the transaction would have been
complete had the money been deposited into the
draw box. PW 11' s evidence
as contained in the video recordings and virtually unchallenged have shown
that no such thing
was done by this Appellant.
Also of
significance is the fact that this witness in his own words, had more or
lessemned himself. In examination in
chief, he states: <
"When-ever I get cash for
the cage, ld give cash to the customestomer. Customer would play with the
cash and sometimes
they merely put it in their pocket.
.... Many times I got cash
for cage and gave the same to the players for his or her cheques. "
Unfortunately, in this case it
is clear on the evidence he did not give any cash toV) nor to her
partnerrtner PW(VI) Agness
Tion. The Appellant never makes even any suggestion to
the effect that he may have placed the money in the draw box. His
explanations with respect can ever be described as satisfactory or credible.
I am satisfied there was more
than sufficient evidence before the learned Magistrate to come to the
conclusion he did
that the money received had been misappropriated by the
Appellant and not accounted for. The appeal on conviction is dismissed.
He
is convicted and the sentence of five months of imprisonment imposed by the
learned Magistrate is confirmed to be
served forthwith.
With regards to the appeal
against sentence of one month imprisonment for the offence of assault,
whilst I accept it is
within the range for such offences which the learned
Magistrate can impose, I accept the submissions of learned Counsel Mr.
Manetoali, that taking into account the relevant circumstances surrounding
the commission of that offence and the mitigating
factors of the Appellant,
I accept a fine would have been more appropriate. The sentence of
imprisonment is quashed and
a fine of $200-00 is substituted to be paid in
seven days, in default the Appellant will serve 90 days further in prison.
I CERTIFY THESE ORDERS TO THE
COURT BELOW.
THE COURT
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