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State v Vuatalevu [2007] FJMC 3; Criminal Case No 1347 of 2005 (5 March 2007)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 1347 of 2005

STATE

V

TALICA SEUVOU VUATALEVU

Before Ajmal Gulab Khan Esq
Resident Magistrate

Date of Hearing: 6/2/07.
Date of Judgment: 5/03/07

Prosecution: Ms Laisa Lagilevu
Defence: Mr M. Raza

JUDGMENT

The accused has been charged for the offence of larceny by servant contrary to S 274 (a) (i) of the Penal Code.

PARTICULARS OF OFFENCE:

Talica Sauvou Vuatalevu between30th March 2005 and 31st may 2005 at Lomaloma Vanuabalavu; Lau being a servant employed by Post Fiji Ltd. stole $94,670.32 the property of Post Fiji Ltd.

PROSECUTION CASE:

The prosecution alleges Talica was a Post mistress at Lomaloma Post Office in 2005. She was responsible for the financial transactions at the post office. At anyone time a rural post office has a float cash of $10,000. Any excess over $10,000 is remitted with a form called ‘remittance between post offices’ (hereafter called R.B.P.O.) to the General Post Office, Suva. This RBPO is sent on as required basis.

The post office had usual transactions, bill payments, telephone a/c, Western Union moneys; LTA and Home centre collections and post shop proceeds. Excess of $10,000 was a frequent and regular occurrence.

The Lomaloma post office did not send RBPO from March to April 2005. The delay was unusual.

The first prosecution witness went to Lomaloma to audit the books. He tallied the case book and the cash in till. He found a shortage of $34,570.32. He found 3 RBPO forms unsent to Suva. They were for March to April totaling $30,500. Mr Bese concluded his audit and found $94,670.32 was the shortage in accounts books. The total case from post shop at end of each day was deposited with Talica at the post office. This was done by post shop manager, Fiji Wainiqolo.

The accused had keys to post office safe and was responsible for the moneys.

ACCUSED’S CASE:

Talica said she was not the only person with keys. The shortage was in existence from year 2000. To tally the books she borrowed money from businessmen on Island and made up the shortfalls for the time auditors were on the island. She returned them the money after inspection of accounts.

She said staff at post office were unqualified relatives of Peni Mau, the Managing Director. Her quarters was forcefully taken by Managing Director and given to his brother Tupou Mau who was a villager; given management work at the post office. Consequently she had to live in the village some 30 km away. Due to transport difficulties she came to work late and left early at 3.30 pm to catch the last school bus to the village home.

Tupou Mau and others used to have parties at the post office. Cash shortage was a problem. Talica was on leave for 3 weeks and Tupou Mau managed the post office. He was later dismissed due to cash shortages.

Bese confirmed Mau was dismissed due to cash shortages in 2004. Talica says she did not report this shortage as she was afraid to lose her job. She says she was culturally suppressed not to report on her superiors activities at the Island Post Office. She explained the existence of shortages from year 2000. Tupou, Qoli and Tui came from Lau and were close relatives of Peni Mau, (Managing Director) our big boss. They took part in the management of Lomaloma Post Office. "I do not know how the shortages came about."

She also said "auditor Luke did not conduct a full audit inspection of her books and did not check in all my record"

She denied stealing any moneys from the post office.

ANALYSIS OF EVIDENCE:

The onus is upon the prosecution to prove all elements of the offence beyond reasonable doubt.

The Prosecution has to prove that the accused was an employee of Post Fiji Ltd and stole the property of her employer amounting to $94,670.32.

It is undisputed by defence and I am satisfied that the accused was a post mistress at Lomaloma post office during March 30th to May 31st and an employ of Post Fiji Ltd.

The only question is whether the accused stole the sum of $94,670.32?

The prosecution has no direct evidence of stealing. It relied on circumstantial evidence. The account books and the RBPO forms did not balance thus showing a shortage. As to when and how the shortage occurred was not explained in evidence. Suspicions has been caste by accused on the audited accounts of post Fiji. There has been prior shortages also. She has stated to police and in court that the auditor did not carry out proper audit or check her books properly when shortage had existed in 2004.

She says shortages were there from the time ‘Tupou, Qoli and Tui were working at the post office.

The onus was on prosecution to discharge the fact that proper audit was done and no shortages existed earlier on. The prosecution did not call the auditor who did the audit. The investigating officer did not interview nor called Tupou, Qoli or Tui to court.

I accept the circumstances of this case throw grave suspicion on the accused.

1. She had keys to safe
   
2. She borrowed money to balance books to conceal shorts from auditors.
   
3. She failed to report shortages to her superiors.
   
4. She failed to remit RBPO on time to Suva
   
5. She did not report shortages when she became aware even that of Tupou Mau (Managing Director’s brother)
   

All of the above shows she had broken all rules of employment and her conduct was grossly negligent compared to that of a trusted and faithful employee.

However, for this criminal case the question is does it all prove beyond reasonable doubt that she stole the shortages in accounts?

Stealing is defined in the Penal Code in Section 259

"Any person steals who without consent of the owner, fraudulently and without a colour of right made in good faith, takes and carries away any thing capable of being stolen with intent at the time of such taking, permanently to deprive the owner."

The prosecution relies on circumstantial evidence in this case. They say shortages were unreported and concealed; she had keys to safe which all points to her being the person who stole the short cash.

The accused has given explanation as to why she concealed the shortages. She borrowed money with intent to show a balanced book during the auditors visit to the post office. She was afraid to lose her job.

Her quarters was forcefully taken and given away for use of the Managing Directors brother and relatives use. She had to live in a village 30 km away. She left work premises early about 3.30 pm and arrived late for work in the mornings. She said the cause of shortages were other employees. ‘Tupou, Qoli and Tui who was her assistants. She also questioned her book inspections by (Luke) the auditor.

She raised questions on Post shop manager’s irregular deposit of post shop cash with her for safe deposits.

Since there is no direct evidence of stealing. The crucial question for me is "whether I can infer from evidence led and does it point to the irresistible conclusion that the accused is the person who stole $94,670 cash which is the shortages in the accounts."

I note the following:

1. The shortages were shown from the trial balance counter book and in accuracy of accounting was not explained.
   
2. The accountant was not called to explain the actual receipts and expenses or the actual cash takings to show the actual balances in accounts for the years in question.
   
3. There had been discrepancies in 2004 when one Luke did the audit. The question if the shortages were in existence as raised by accused remains unanswered. Luke was not called to give evidence.
   
4. The Post shop money was also given to the accused to be placed in her safe. The post shop manger Fili Wainiqolo’s record was taken as the cash received for the purpose of the RBPO forms and audit.
   

However, Fili Wainiqolo did not give evidence in court and in view of questions raised by the accused, it is not proved beyond reasonable doubt that Wainiqolo actually handed the post shop money to be kept in the safe as it ought to have been done.

5. The accused gave alibis as to who else could have been responsible. She named Tupou, Qoli and Tui who were her assistants at the post office. Tupou also managed the post office for 3 weeks when the accused was on leave.

The investigating officer did not interview or record their evidence. They were also not called as witnesses by the Prosecution on evidence before me I find it difficult to say without reasonable suspicion that Talica is the only one who could have stolen the money.

In view of above, I am unable to say that all evidence points irresistibly to the accused as the one who could have stolen the moneys.

There are others who may have done it as the shortages had existed from before. Without direct evidence of the auditor Luke and shop manager Wainiqolo, Qoli, Tui and Mau, I cannot conclusively decide on question of keys, accounts on length of shortage.

The evidence shows complete disregard by employee of the rules and procedures of works. It also points to reports in and irregular supervision of accounts of Post Fiji on the Island post offices.

However, I cannot say beyond reasonable doubt that the shortages of $94,670 was money stolen by the accused. The accused is therefore acquitted.

Dated this 5th day of March 2007.

Ajmal G Khan
RESIDENT MAGISTRATE