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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR (FC). 615 OF 2012
THE STATE
Wewak: Geita J
2015: 22, 23 April; 11, 18 May; 13 August
CRIMINAL LAW – VERDICT – Trial - Charges of fraudulent accounting and stealing K31,690.00 from her employer Sepik Savings & Loans Society Wewak Branch – Fictitious account opened and operated – Monies fraudulently transferred and posted into such accounts - Only logical and reasonable inference from accepted primary facts support inferences of stealing and fraudulent accounting by the accused - Verdicts of guilty.
CRIMINAL LAW – Systematic false accounting and systematic stealing over time - Offence committed by an educated and experienced teller – Consequences of the crime known full well by the accused – Deliberate acts of stealing & deliberate acts of false accounting - Sections 372 (7) (a) & 418 (b) Criminal Code Act - Verdicts of guilty.
Cases cited:
The State v Kindi Lawi [1987] PNGLR 183
The State v Koivi Ipai (No 2) (2010) N.3972
The State v Laumadava [1994] PNGLR 291
The State v Paulus Pawa [1981] PNGLR 498
The State v Tom Morris [1981] PNGLR 493
Counsel:
Ms. Sabine Dusava & Paul Tusais, for the State
Mr. Darrell Sakumai, for the Accused
JUDGMENT ON VERDICT
13 August, 2015
1. GEITA J: The accused pleaded not guilty to two counts: fraudulent accounting and stealing, contrary to sections 418 (b) and 372 (7) (a) of the Criminal Code Act.
Terms of the Indictment and the offences
2. Between 1st January 2011 and 1st September 2011, the accused was employed as a Customer Service Officer and Data Operating Officer with Sepik Savings and Loans Society in Wewak, East Sepik Province, hereafter SS&LS. During that period the accused used her position and made deposit adjustments from a deceased member, James Mainguma's account No. 3048 into his daughter's account No. 7221. (Ms. Jacklyn Mainguma). A sum of K41, 600.00 was posted into Jacklyn's account. The accused than jointly operated and accessed Jacklyn's accounts and made withdrawals unbeknown to her. Of that amount K31, 680.00 were withdrawn by the accused for her own use over time.
Prosecution evidence
3. The State evidence consisted of three witnesses and documentary evidence tendered into court by consent. By consent they were grouped in this manner:
Oral testimonies
4. Susan Kalinau is the Team Leader of Finance and Administration with Sepik Savings and Loans Society Wewak (SS&LS) for over 10 years. She gave testimony of knowing the accused since her transfer to Wewak Branch from Ambunti Branch in 2008 working as customer service officer and eventually teller, accepting deposits, payments and withdrawals. During the cause of her daily checks in January 2011 she detected anomalies made by the accused in Jacklyn Mainguma's accounts covering a period from 1st January 2008 to 31st August 2011.
5. The witness introduced into court all relevant documents touching on her findings and outcomes of her investigations into the fraudulent accountings and stealing carried out by the accused on Jacklyn Mainguma's two passbook accounts. Her investigations revealed that between January 2011 to July 2011 a total of K17, 600.00 was deposited into Account No. 03048. During the corresponding year a sum of K13, 420.00 was withdrawn from the same account. Similarly between January 2011 to July 2011 a total of K24, 000.00 was deposited into Account No. 07221. During the corresponding year a sum of K18, 260.00 was withdrawn from the same account. The outcome of her findings were relayed to Adel by letter to which she responded admitting the fraudulent accounting and stealing and requested for understanding and forgiveness and requested for a pardon and her allowed time to repay the monies she stole amounting to K4, 500 and not K41, 589.57.
6. Referring to a Savings Till Sheet showing Emily as the teller on duty that day on 4 June 2011, the witness said Emily was not at work on that day but was away on annual leave at the material time. Her password was given to Adel. The witness said no actual cash changed hands during all adjustments done on 17 January 2011 as none were shown in the corresponding Savings Till Sheets for the day.
7. In cross examination when suggested to her that the former Manager Bill Wangi was terminated for stealing monies from SS&LS the witness said the manager was terminated for insubordination. The witness said out of the many withdrawals made only 7 forms were located as others could not be located during their investigations. When suggested to her why no hand writing experts were called to verify certain signatures on withdrawal forms, the witness said all signatures of officers were easily identifiable by the branch. She said Jacklyn's two passbooks were handed over to Adel to make the transfers however such passbooks were never found during interviews with Jacklyn or Adel.
8. Jacklyn Mainguma is the complainant. In 2006 her father died leaving her with K900 in his passbook No. 3048. In her own account No. 7221 she had K500. She than approached the accused in the same year at the bank and asked for a merger of the two accounts. The two passbooks were left with the accused. The witness said during their encounter the accused spun a yarn about her marriage problems and asked if she could use Jacklyn's account to deposit and withdraw her monies, supposedly away from her husband. Since Jacklyn did not have a lot of money in her passbook she consented to this arrangement. She said over a period of time withdrawal slips would be taken to her for her signature. The amounts of monies to be withdrawn were not indicated on the withdrawal slips.
9. The witness said when SS&LS discovered the discrepancies Adel Gaumior took the two passbooks to her at her workplace in a local store and asked that they be kept hidden as some big deposits were made into the books. The accused suggested to her that they both would share those monies but she got scared and refused to accept the passbooks from Adel Gaumior. She said she recalls making two withdrawals but thought little about the payouts as they were not her monies. From there on withdrawal slips were taken to her for her signature. The witness identified some signatures on withdrawal slips to be hers but took issue with the handwritings, saying "signature looks to be mine but handwriting is not mine"
10. In cross examination the witness remained adamant that she gave instructions to Adel to close her father's account and transfer proceeds to her account. She maintained that her passbooks were never kept in the bank during those withdrawals. When suggested to her that other tellers may have accessed her accounts and withdrawn monies she maintained that her books were kept by Adel because of her money problems.
11. In re examination the witness said she never withdraw K500 or K900 saying she only requested for the K900 to be transferred from her father's account into her own account No. 7221.
12. Cletus Toli was a teller in 2011 and recalls making several withdrawal payments to Adel Gaumior after such withdrawals were authorised by the former CEO. At the time the accused was the customer services assistant and sought his assistance to facilitate withdrawals for Jacklyn Mainguma. He said withdrawal slips were presented with the authorized signatures accompanied by a print out of the account showing details of the last withdrawal. The former CEO than verified the payouts. The witness said the only time she saw Jacklyn Mainguma was during the first two withdrawals with Adel. After that only Adel was present during all other withdrawals, giving reasons that Jacklyn was very busy. He said cash would be placed in envelopes and handed over to Adel.
13. In cross examination when suggested to him that Angeline Konou was suspended because of the investigations and not retrenched he denied that to be so. Cross examination continue:
Q. 9. Each officer had passwords?
Ans. Yes
Q.10. There were instances of other officers using passwords to get into accounts and do transactions?
Ans. I only became aware of that when Adel was caught. Possibilities of transactions being done
Q. 11. So if transactions done in Jacklyn Mainguma's account, others using passwords could get into that account?
Ans. Yes.
14. In re examination the witness said all withdrawals must be accompanied by the production of clients' passbooks. He said it was not common for passbooks to be left lying around in the office. Adding that it was not possible for Jacklyn's two passbooks to be lying around since 2011.
Defence evidence
15. At the end of State's evidence Defence Lawyer submitted on behalf of Adel that the accused wished to remain silent and no evidence would be called. Mr Sakumai advised that all three options available to her client were explained to which she elected to remain silent. Only her letter in response to SS&LS was tendered and received marked Exhibit 1. Notable in her response was her admission of stealing and fraudulently creating a Christmas Account by posting a sum of K41, 589.57 without approval from management.
Submissions from State
16. The Public Prosecutor submitted that all the required elements of the charge of fraudulent false accounting s.418 and stealing from employer under s.372 (7) (a) have been satisfied through oral and documentary evidence including the accused own admissions. Notwithstanding the partial admissions of certain amounts being stolen only, a multiplicity of deposit adjustments and subsequent withdrawals shown in documentary evidence of Statements, Ledgers and Till sheets attest strongly to her fraudulent and stealing more monies than what was admitted too. Ms Dusava submitted that the accused had the opportunity to be heard but elected to remain silent and so urged the court to draw inference against her. She said the accused preyed upon an unsophisticated woman and abused her goodwill and trust to carry out her fraudulent actions from 17 January 2011 onwards with eventual withdrawals commencing in April 2011.
17. Ms Dusava submitted that all state witnesses were witnesses of truth and their evidence not discredited in cross examination. By exercising her right to remain silent the accused had foregone her opportunity to shed some light and cast doubts in the States case to her detriment. Further she submitted that when applying the ordinary standards of a "reasonable and honest people" test, the actions of the accused amounted to great dishonesty as a employee of Sepik Savings and Loans Society and called for a guilty verdict.
Submissions from Defence
18. The thrust of defence submissions was that there was insufficient evidence for the charges of fraudulent accounting and stealing to be linked to her client. State evidence was basically circumstantial allowing for court to draw inferences favourable to the accused premised on doubts that 1. Other staff members of Sepik Savings and Loans Society may have committed the fraudulent postings/transfers and stealing by withdrawals. 2. As to who actually collected the withdrawal proceeds hence benefitted, the State has not shown or proven that her client Adel was responsible. Defence Counsel Mr. Darrell Sakumai submitted that her client be acquitted in light of reasonable doubts created by defence on the two allegations.
19. Assessment of evidence: Issues.
1. Whether the accused posted false deposits totalling K41, 600.00 into Jacklyn Mainguma's SS&LS Account and
2. Whether or not the accused stole K31, 680.00,the property of her employer SS&LS?
20. In trying to narrow down possible suspects in this stealing and fraudulent accounting, I first look at the roles played by all bank tellers in general, including a Ms. Emily Pomah, the accused and the former manager of SS&LS. I do this by posing the following questions.
Evidence before court suggests that it was possible for other tellers to tamper with clients accounts by fraudulent means eg: using other teller's passwords without their knowledge. No credible evidence came from the accused to substantiate this assertion as she elected to remain silent. State witness Chris Toli, a former teller admitted in cross examination that tampering of clients accounts was possible through this means however, he only became aware of its existence and use from the accused when her overt activities surfaced in public after investigations. The undisputed evidence of this type of fraudulent activity before court is contained in Adel Gaumior's admissions in answer to questions 27, 28 and 29 in her record of interview. She admitted accessing Emily Pomahs' password on 4 June 2011 and posted an adjustment of K4, 500.00 back dated to 12 October 2010. In the absence of any evidence to the contrary it is open to this court to infer that other tellers were not involved, save the accused.
The undisputed evidence before court shows that Emily was on leave when the fraudulent transfer and postings of monies were made using her password. Furthermore Adel Gaumior had privy to Emily's password as she was getting ready to transfer to Madang. It follows that all transfers and postings of monies on Emily Pomah's account were made by Adel Gaumior. Inferentially therefore the accused committed those fraudulent activities and not Emily.
The only evidence before court was that he was terminated for reasons other than those related to the two allegations. No other evidence was forthcoming from defence save their dismal attempts to cast doubts in the mind of this court. Be that it may I am not convinced that this doubt is of any great significance and is of little utility in the overall allegations.
The undisputed evidence before court shows that the accused made a series of fraudulent adjustments ranging between K2500 and K3000 backdated to various dates in 2008 amounting to K41, 600.00 and withdrew monies totalling K31, 680.00. Furthermore there is undisputed evidence that Adel Gaumior made fraudulent adjustments and posted all transactions on Savers statement of account 3048 under Christmas Savings. (Q and A 35 ROI). There is ample undisputed evidence in the accused's record of interview corroborating her fraudulent accounting of accounts 2731 and 3340.
21. Furthermore there is also undisputed evidence of Adel's admissions on fraudulent accounting and stealing contained in her response to SS&LS from the two accounts. The accused's supposed defences of other officers who may be implicated must fail due to lack of credible evidence. Likewise her assertion of other tellers fraudulently accessing the system using other person's passwords must also fail for the same reasons.
22. Inferentially therefore it is open to this court to infer that the accused Adel Gaumior was the one who committed those fraudulent accounting and eventually stealing from the two accounts, monies which were transferred into and withdrawn and no other. Adel Gaumior's half hearted admission of only stealing a portion of the total alleged stolen monies will not pardon hers from her acts of stealing. A stealing however small or big is still a stealing. Like what the good Book teaches us there is no such thing as a small sin or big sin. All sin regardless of how small or how big is still sin and abhorred in the eyes of God. For the moment all fingers are pointed at her engineering the fraudulent accounting and eventually stealing from those two accounts owned by Jacklyn. In the absence of any evidence to the contrary I find that Adel Gaumior was the perpetrator and no other.
23. Defence assertions of isolating Adel from all unaccounted withdrawals in my view are a fallacy. First up is that: Adel presented herself to make those withdrawals on a numerous occasions in the absence of Jacklyn giving excuses that Jacklyn was busy; Jacklyn accompanied her only on two occasions; more than 10 withdrawals were made in her absence; Ample documentary evidence showed that Adel made those fraudulent postings/transfers to Jacklyn's two accounts including withdrawals. It follows that having successfully presented Jacklyn to the cash out tellers in person during those two first withdrawals; the scene was now set for her to make those subsequent withdrawals without Jacklyn's presence as a cover. A dubious and crafty scheme employed by a crafty former Customer Services Officer cum Data Operator and Teller. Inferentially therefore I have no reason to doubt in my mind that all withdrawals were made by the accused and she benefitted from the proceeds and none other.
24. It follows in my view that she must be held accountable for the crimes committed? It is not disputed that the purported crimes were committed during the currency of her employment with SS&LS, hence an employed servant who engineered the stealing from her employer. There is ample credible evidence, both oral and documentary that supports courts findings that the accused engineered the fraudulent accounting/transfers and eventually withdrew monies from those two accounts. I am satisfied that the accused was very well versed with the accounting system employed by SS&LS and manipulated the system. Furthermore she was quite appreciative of the rights and wrongs of her actions however continued on stealing until she was found out. I am therefore satisfied that she knew that what she was doing was fraudulent and dishonest. (The State v Laumadava [1994] PNGLR 291 and Kindi Lawi v The State [1987] PNGLR 183.)
Application of the law to the Facts
25. Since the matter before me rests substantially on accepting circumstantial evidence or otherwise to make a finding of guilt, I caution myself on the need to be careful in convicting persons on such evidence. The law on circumstantial evidence is that, where a case against an accused person rests substantially upon circumstantial evidence, the question for the court is whether the guilt of the accused is the only rational inference that in all the circumstances would enable it to draw. The case of The State -v- Tom Morris [1981] PNGLR 493 and Paulus Pawa -v- The State [1981] PNGLR 498 are primary sources of reference.
26. Now applying the test stated in the above mentioned case: Do the proven facts lead reasonably to only one conclusion- that the accused did all the things constituting the elements of the offences? If yes the accused is guilty. If not the accused is entitled to an acquittal. I answer in the affirmative to both allegations. Therefore the only logical and rational inference that could be drawn from the proven facts lead me to only one conclusion: That over a period of three months since taking over from Emily Pomah as Data Operator, the accused systematically posted deposits/transfers from a fictious account she created using Jacklyn Mainguma's name amounting to K41, 589.57 and systematically withdrew monies from those two accounts totalling K31, 680.00 for her own use.
27. By operation of Section 372 (7) (a) & (b) of The Criminal Code Act the required elements of you now singled out as the accused, whilst being a servant/employee stole from your employer Sepik Savings & Loans Society, Wewak Branch (cash monies totalling K31,689.00) is made out. (Emphasis mine). Furthermore
28. By operation of Section 418 (b) of The Criminal Code Act the required elements of you now singled out as the accused, in your acting capacity made false entries to Jacklyn Mainguma's accounts held at the Sepik Savings & Loans Society, Wewak Branch with intent to defraud, is made out. (Emphasis mine).
29. Verdict
I confirm a verdict of guilty on Count 1 of Fraudulent Accounting:
I also confirm a verdict of guilty on Count 2 of Stealing.
Accordingly I convict you on both counts of fraudulent accounting and stealing pursuant to Section 372 (7) (a) and Section 418 (b)
of the Criminal Code Act as amended.
You are now a prisoner of the State and as such I order that your bail will be returned to you with you placed in the custody of the
State at Boram CIS pending your sentence.
Orders accordingly,
Public Prosecutor: Lawyer for the State
M.S.Wagambie Lawyers : Lawyer for the Accused
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