Justice of Appeal Mark Mohammed.
A former president of the Carnbee/Mt Pleasant Community Council has lost his appeal against his conviction for fraudulent conversion in 2013 arising out of his use of funds without approval.
On Monday, Justices of Appeal Mark Mohammed and Maria Wilson dismissed Tomley Roberts’s appeal and ordered him to pay the $2,000 fine imposed by a Tobago magistrate and $33,000 in restitution to the council.
It was the prosecution’s case that Roberts, as president of the council, cashed two cheques in January 2013. The council’s treasurer at the time said while she did not write the cheques, which bore her signature, it was customary for her to give blank cheques with her signature to transact council business.
Roberts claimed the money – which amounted to $33,000 – was used to pay for advertisements for the council’s sports and family day event. In evidence advanced at the trial, it was stated that the council was unaware of a decision to advertise the event, and after a meeting was held to look at the status of the council’s accounts, discrepancies were found and Roberts was asked to account for the two cheques.
It was the prosecution’s case that he produced copies of the two cheques at the meeting and told the council he had invested money on behalf of the council, but did not say where it was invested, only that he would repay it in six weeks.
Since Roberts had no approval from the council to make investments on its behalf, nor did the executive know about the investment, a report was made to the police in January 2014.
Roberts’s attorney, Martin George, argued that the prosecution fell short of proving elements of the offence of fraudulent conversion.
However, special prosecutor Wayne Rajbansie argued that the evidence was that Roberts made himself out as the payee for two cheques without the council’s consent.
“The issue is, what did he do with the money? He had to show he was authorised to spend the money.”
In their ruling, the judges agreed that Roberts, on his own volition and without the consent of the council, arranged to put advertisements in a magazine, departed from his previous approach of issuing the cheques directly to an advertising agency, and promised to repay the money, but did not do so.
“Looking at the evidence cumulatively, we are satisfied that the prosecution had established the requisite standard to prove fraudulent conversion. The decision in finding him guilty was a reasonable one and was open to the magistrate having regard to the totality of the evidence,” Mohammed said.
The judges also dismissed Robert’s complaint of the magistrate’s failure to give written reasons in 60 days.
“The absence of reasons will not generate a standing ground of appeal,” Mohammed said, adding that their absence was not fatal to the conviction, since the reasons for the conviction could be gleaned from the transcript of the proceedings.
He admitted the issue of providing reasons long after a matter has been dealt with by the court has not been explored fully, but in this case, the reason for the conviction could be ascertained on the record.
“The prosecution’s case was cogent, there were no inconsistencies or gaps,” he said.
In keeping with the magistrate’s orders, if Roberts fails to pay the $2,000 fine, he will serve four months in default and six weeks if he fails to pay the compensation.
Also representing him was attorney Darrel Bartholomew. Roberts was charged by Insp Alicia Piggott.