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Supreme Court of Samoa |
IN THE SUPREME COURT OF SAMOA
HELD AT APIA
BETWEEN:
THE POLICE
(Informant)
AND
SULIA FAAMAUSILI ALE
SOLI FAAMAUSILI ALE
LUSIA ANITELEA
SIFAGA TAGATA
(Defendants)
Hearing: 10.06.2002 – 20.06.20002
Counsel: Mr D. Potoi & Ms S Eteuati for prosecution
Ms S. Hazelman for Sulia Faamausili Ale
Ms S. Hazelman for Soli Faamausili Ale
Ms M. Tuatagaloa for Lusia Sanele Anitelea
Mr M. Leung Wai for Sifaga Tagata
Judgment: 25 June 2002
RESERVED JUDGMENT OF LANCE J.
1. The defendants are:-
Sulia Faamausili Ale, female aged 20 years
Soli Faamausili Ale, female aged 26 years
Lusia Sanele Anitelea, female aged 37 years
Sifaga Tagata, female aged 30 years.
2. They are all charged jointly with 8 counts in the following terms.
s115/01 – That between the 1st and the 30th of June 2000 the defendants being servants of the Telecom Samoa Cellular Limited received $32,701.03 in cash the property of their employer the Telecom Samoa Cellular Limited which they were obligated to credit to their employer’s account but fraudulently deals with it in another manner.
In summary the 8 counts are:-
June 2000 = $32,701.03
August 2000 = $20,236.96
September 2000 = $16,785.06
October 2000 = $41,137.80
November 2000 = $7,715.51
January 2001 = $143,445.35
February 2001 = $71,445.35
March 2001 = $32,659.48
Total $366,397.50
3. Crimes Ordinance 88 reads:-
“Extended definition of theft - Without in any way limiting the generality of the foregoing definition of theft, every person shall be deemed guilty of theft who holds, receives, or obtains any money, valuable security, or other thing whatsoever capable of being stolen, subject to any obligation (whether or implied contract, or from any other source whatsoever) to deal with such money, valuable security, or thing in any manner, and who fraudulently or dishonestly deals with it in any other manner, or fails to deal with it in accordance with such obligation.”
Crimes Ordinance 86 provides a maximum sentence of 7 years imprisonment.
Crimes Ordinance 23 (1)(b) provides:
“Everyone is a party to and guilty of an offence who .....
(b) Does or omits an act for the purpose of aiding any person to commit the offence ......”
5. BACKGROUND:
The defendants were employees of Telecom Samoa Cellular Limited at all relevant times with varying job descriptions and duties many of which overlapped to varying degrees and from time to time depending on such variables as work loads and absences. Included in their collective duties were the tasks of receiving cash, Eftpos and cheques payable to the company for services. Such were receipted, placed in a receptacle called “the black tin”. At the close of the day details were entered on the computer (Soloman System): a billing report and summary prepared, and the money and cheques locked in the office safe overnight for banking the next day.
6. THE TRIAL:
The trial was scheduled to start on Monday 10 June. For various reasons including illness of a Prosecutor, delayed discovery, power failure, the plea of guilty by one accused and the briefing of her evidence for trial, the absence of a witness taking an external examination the evidence did not commence until 4pm Wednesday 12 June. The Prosecution called three witnesses – Alofa Viliamu a part time employee who worked between August 2000 and January 2001 (when she returned to school), Peter Conner the managing director of Telecom Samoa Cellular Limited and Marie Passi-Westerlund. The Prosecution case finished at 3pm Tuesday 18 June. The Defence called no evidence. Counsel sought an adjournment to enable the transcript to be typed and to prepare submissions. Final submissions commenced on Wednesday 19 June 2002 and concluded at 3 p.m. I reserved my decision. The accused were remanded to Tuesday 25 June at 11.45am.
7. THE EVIDENCE:
Peter Connor is and has been the managing director of Telecom Samoa Cellular Limited since 1 July 2000. He said all the defendants were employees of the company when he commenced his employment. `He described the duties of the employees Lusia, whose responsibilities included all accounting functions, balancing petty cash and generally managing other staff.
Marie: being the cashier/receptionist who sat at the front desk, sent out the monthly accounts, received and receipted payments, did the banking and had supervision of the “black tin” (cash box).
Soli: the sales executive who managed stock and had a separate cash box (“beige tin”) for repairs and new connection payments.
Sulia: assistant to Marie as cashier/receptionist and responsibility for debt collection.
Sifaga: initially part time tea lady who, when her position became permanent, also assisted Marie as cashier.
Alofa: part time before returning to school who helped as cashier/receptionist and general duties.
He emphasised that on occasions of staff absences and during busy periods all staff would share the various office duties such that there was considerable overlapping of responsibilities and tasks.
He outlined the office procedures I have already mentioned and said the “black tin” was put in the office safe, situated in his room, overnight. It had a key, which was usually left in the lock, but was secured by a combination lock with the number known to himself, Lusia and Soli.
Connor said shortly after he took up his position he was alerted to a number of accounting irregularities particularly relating to banking reconciliations. He commenced an audit He asked for explanations which were not forthcoming. He received a message that “the girls wanted to talk to him”. It emerged from that meeting that all the defendants admitted to “borrowing” money from the “black tin”. He believed it has been going on for some two years. This in the face of an office memo dated 25 July 2000 (exhibit 18) given to all defendants and clearly prohibiting unauthorised staff “advances”.
On 4th April 2001 Connor interviewed all defendants. A written record was made of the interviews and signed by the defendants. The statements were produced in evidence – (exhibits 33 to 36 inclusive). All defendants admitted to various “borrowings”. They were dismissed from their employment.
Marie Westerlund (who had previously pleaded guilty and been sentenced) gave evidence. She said she commenced work with Telecom Samoa Cellular Limited on 1 February 1999 and within two months became aware of the “borrowing system”. She said Lusia confirmed the practice and told her she could partake. In May 2000 she said she started recording the borrowings. She adopted a simple practice of recording the “borrowing” on a piece of paper which she put in the “black tin”. For repayments she would deduct the amount from the recorded figure, write a new note with the net amount owing. She kept these notes in the tin. As at March 2001 she said the following amounts were outstanding: Lusia $13,900: Sulia $6000: Soli $2,000 (there was evidence this was later repaid): Sifaga $19,000. She believed there were also “borrowings” which were not recorded. For example she said on occasions she counted the cash in the tin before she went to lunch. Upon return she counted again and money was missing without any corresponding note indicating a “borrowing”. These “borrowings” and missing cash caused her difficulties in reconciling the banking the next day. On occasions she adjusted this by using the previous days cash take. There was evidence on other occasions banking of cash was not done for considerable periods of time. On one occasion she had altered the companies receipt book to show a cash deposit which did not correspond with the bank record. To explain the discrepancy she obtained a bank letter-head and wrote a letter to the company, purportedly on behalf of the bank, saying it was a bank error and apologising. The amount was significant: $32,000
Alofa Viliamu worked part time during holidays between August 2000 and January 2001 assisting receipting payments and general accounting work. She confirmed the “borrowing” practices, saw I.O.U. notes in the tin and confirmed delayed bankings.
Of significance are the statements made by the defendants.
Sulia admitted first “borrowing” money in July 2000 and said it was “small sums” but acknowledged Marie had told her she owed about $5,000. She detailed two incidents when money went “missing”. The first when a plastic bag with about $11,000 was put in the safe overnight and the next morning the bag was there but money had gone. And on another occasion when “about $10,000 or $11,000 was put in the safe and the next day $4,000 was missing”. When questioned about how the “borrowings” could be repaid she said the defendants discussed a plan whereby Marie would get a loan from NPF and the sum would be divided between the four to pay back the deficit.
Soli described the “borrowing” practices prior to Peter Connor’s appointment. She acknowledged “borrowing” herself and a particular instance of $2,000 which she intended to repay from her bonus but was unable to do so at the time. She described money going missing from the safe, on one occasion $4,000. She mentioned some of the defendants became so concerned at the safety of leaving money overnight in the safe they adopted the practice of hiding it under her desk.
Lusia: said she had “borrowed” for a long time and described regular “borrowings” of $240 a week and making repayments on pay week. She denied being responsible for any of the large sums of money that had gone “missing: described the practice of Marie keeping a record which she thought estimated her “borrowings” at $5,000 and proposed repayment by getting “another loan from the ANZ”. She knew the combination number of the office safe.
Sifaga: acknowledged “borrowing” since November 2000. She proposed to repay $3000 by obtaining a loan from her aunt.
8. THE LAW
This is a criminal trial: the Prosecution must prove all the essential elements of the offences beyond reasonable doubt.
The essential elements in this case are:-
(a) the identification of the defendants
(b) the dates when the money was stolen (having regard to the 8 particular charges)
(c) that money is a commodity capable of being stolen
(d) that the defendants received the money
(e) that the defendants were obliged to bank the money
(f) that the defendants dealt with the money in a fraudulent manner and without colour of right.
The Defence did not challenge the elements (a) (b) and (c). I find those elements proven to the required standard.
9. THE PROSECUTION CASE - against SULIA
Mr Potoi submitted Sulia’s duties included, at times, receiving and receipting monies at the front desk. She admitted to Connor she had “borrowed” money: Westerlund said on a regular basis. And she was aware of banking shortages. He submitted, given her awareness her “borrowings” were not authorised and she acted fraudulently and dishonestly.
Miss Hazelman conceded Sulia received monies subject to a fiduciary obligation (R v Scale (1977) 1 NZLR 178). But submitted the Prosecution has failed to prove a key “mental” element of acting “dishonestly” (R v Coombridge (1976) 2 NZLR 351.
She referred to a number of factors: her assistance as a cashier was limited, doubt over any responsibility for the “missing” money (June 2000) given Westerlunds efforts at concealment; the “borrowings” were “authorised” by Lusia; and submitted if an accused has ample assets and an intention to repay it is relevant evidence to negative dishonesty: and she submitted in this case there was the evidence of the programme of repayments.
As to the issue of dishonesty generally the learned Chief Justice considered the issue comprehensively in The Police v Schuster s548/905 and 555/95 (17 May 1996) pages 13-16. He preferred the line of English authorities because of the closer similarities between the English statutory provision and the Samoan Crimes Ordinance. In R v Gosh [1982] EWCA Crim 2; (1982) 2 All E R 689 Lord Lane said ... .
“a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest ... “
In Coombridge (supra) Richmond P in delivering the Judgment of the N.Z. Court of appeal said at p.387 ....
“We think that, in order to act fraudulently an accused person must certainly, as “the judge pointed out in the present case, act deliberately and with knowledge “that he is acting in breach of his legal obligation. But we are of opinion that if “an accused person sets up a claim that in all the circumstances he honestly “believed that he was justified in departing from his strict obligations, albeit for “some purpose of his own, then his defence should be left to the jury for “consideration provided at least, that there is evidence on which it would be “open to a jury to conclude that in all the circumstances his conduct, although “legally wrong, might nevertheless be regarded as honest. In other words the “jury should be told that the accused cannot be convicted unless he has been “shown to have acted dishonestly”.
I am satisfied the common law defence of “colour of right” applies in Samoa (Police v Tipi Magasive Malaitai (s 35/94) 18 August 1994).
Under section 28 of the Crimes Ordinance 1961 I do not think the Prosecution need prove a Defendant intended to deprive the owner permanently of a thing (or money as in this case). Firstly because the section does not refer to any such requirement which must be contrasted section 85 of the Ordinance where it is specifically mentioned. Secondly I take notice of the comparable legislation in New Zealand. Section 222 of the Crimes Act 1961 – “theft by failing to account or theft by a person required to account”. It is the equivalent provision to section 88 of the Crimes Ordinance 196. Under the New Zealand statute it is not necessary to prove the intent to deprive permanently.
I find Sulia personally received monies from time to time (along with monies received by the other defendants) the cash was put in the “black tin”. It was money clearly belonging to Telecom Samoa Cellular Limited with an overall obligation to bank it. I find there is clear evidence Sulia “borrowed” from the tin from time to time. There is no evidence she was personally responsible for any of the large lots of “missing” money nor the unacknowledged “takings” from the tin. There was a clear office instruction prohibiting “borrowings” (exhibit 18). I accept Connor’s evidence it was brought to the personal attention of all defendants. They, including Sulia, must have known it was unauthorised and wrong. I further find Sulia’s “borrowings” were fraudulent. I have been asked to infer she had an intention to repay either regular amounts or in a lump sum. That is not the point. The offence is committed if there is a dishonest use of the money for her own purposes. Here the “borrowings” were regular and over a long period. She used the money for herself. She knew it was against company policy. She did not disclose it to Connor. And of course I heard no evidence from her as to any intention to repay nor any assets to back her intentions. To the contrary the evidence is when all was exposed she proposed a loan to pay the debt. I have a very clear view applying both the standards of ordinary and decent people and of acting deliberately in breach of a legal and fiduciary obligation that she was acting dishonestly.
I intend to find her guilty of all charges.
10. THE PROSECUTION CASE – against SOLI
Mr Potoi submitted, again, Soli’s duties, although infrequently, included taking monies at the front desk; her admissions of “borrowing” and the knowledge it was wrong; an awareness of banking shortages.
Miss Hazelman sought to minimize her duties and responsibilities. As I said during the trial this case is not in the Employment Court. It is irrelevant that Soli did not have direct responsibility of crediting money to her employer’s account. It is about unauthorised “borrowing” and missing money. Miss Hazelman referred to some charges where Soli was away from the office and out of the jurisdiction for substantial periods. That overlooks the fact all defendants are charged as parties and that she was at work during part of every month. I accept there is no evidence she was responsible for any of the “missing” money although she did know the safe combination.
For the same reasons as I have given for Sulia I find Soli’s “borrowings” were fraudulent. On the issue of intention to repay I accept she actually repaid $2,000 but again I heard no evidence from her as to her beliefs about the legitimacy of the “borrowing” nor of any intention to repay nor any asset backing. I apply the test I referred to earlier and for the same reasons I gave for Sulia I find her “borrowings” were dishonest. I intend to find her guilty.
11. THE PROSECUTION CASE - against LUSIA
Mr Potoi submitted, again, there is clear evidence and admissions of regular and substantial borrowings in Lusia’s case and protracted incorrect reconciling of accounts to cover the deficits.
Miss Tuatagaloa in her submissions, similarly to other counsel, attacked the credibility of Westerlund. I find her credible. She also concentrated on the responsibilities for banking and I repeat this case is about unauthorised “borrowings”. I find Lusia borrowed frequently and substantially and was an active party in facilitating others doing the same. There is also a high degree of suspicion on her relating to at least one lot of “missing” money from the safe. She had access and opportunity. Again, applying the same test as earlier I find Lusia’s “borrowings” were clearly fraudulent and compounded by misleading reconciliations to cover shortages. Again I heard no evidence from Lusia about her intentions to repay and there is the evidence of her need to get “another” loan to meet her indebtedness. I have a clear view she was dishonest. I intend to find her guilty.
12. THE PROSECUTION CASE - against SIFAGA
Mr Potoi submitted there is clear evidence of unauthorised borrowings on a regular basis; admitted by Sifaga.
Mr Leung Wai submitted for various reasons none of the ingredients have been proven to the required standard, I find she did receive monies. I need not repeat my earlier reasoning. It applies equally to Sifaga (although her culpability may be different). As with other counsel Mr Leung Wai concentrated on the respective duties and responsibilities of his client. With respect I think they all over looked the fundamental issue – the “unauthorised borrowings” and “missing” money. In Sifaga’s case I find, despite her difficulties with the English language she was aware of the Company policy against advances (exhibit 18).
Mr Leung Wai also submitted there were difficulties for the defence in the uncertain manner in which the informations were framed. I accept the Prosecution should, fairly inform the defence, by identification of sufficient particulars, the substance of the offence. It may be in this case the informations could have been drafted more helpfully but no counsel sought further clarification nor made an application to quash.
Again applying the same tests and for the same reasons I find Sifaga’s “borrowing” actions were fraudulent and amounted to dishonesty. I intend to find her guilty.
13. GENERAL
In this case all counsel agreed the total deficit was $366,397.50. The Prosecution was unable, and never attempted, to prove the exact amount “borrowed” or “taken” by each defendant. There was the evidence of the admissions by each defendant which is an indicator. There is also the evidence of Westerlund derived from her “notes” and other evidence of access to the safe and the tin. The overall evidence in this case disclosed breaches of company policy against unauthorised advances which seemingly spiralled out of control with wholesale “borrowing” and clearly substantial misappropriation of large sums of money. All the defendants, in my view, acted in concert; all partaking with assistance and to the knowledge of the others acting similarly. I have made findings on the case against each individually. Looking at the case on the basis they were acting as parties I find them all in one way or another acted to assist each other in the commission of the offences. To support there is also the evidence of a combined proposal to borrow enough to cover the deficit and share the responsibility equally, without consideration of calculating each defendant’s personal liability.
As I said to counsel at the outset it was a criminal trial and the guilt or otherwise of each defendant would not be determined by their job descriptions or particular duties but their respective actions.
Counsel seemed to confuse respective culpability for amounts (relevant at sentencing) with liability for offending. All the prosecution witnesses I find were credible and relatively reliable. In the absence of any defence evidence the central issues of receiving knowledge of wrong doing, intent and ultimate dishonesty were matters of inference and in the end quite clear.
14. RESULT
I find all the defendants guilty of all charges and will enter convictions accordingly.
JUSTICE M.H.W. LANCE Q.C.
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