IN THE KIRIBATI COURT OF APPEAL
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Appeal No. 1 of 2012

BETWEEN

THE REPUBLIC
APPELLANT

AND

KARIANAKO KAMAUA
RESPONDENT
 
Before: Paterson JA
Williams JA Barker JA 

Counsel: Pauline Beiatau for appellant
Banuera Berina for respondent

Date of Hearing: 13 August 2012
Date of Judgment: 15 August 2012

JUDGMENT OF THE COURT

INTRODUCTION

1.	The Republic charged the respondent Karianako Kamaua with one count of embezzlement under the provision of section 266(a)(ii) of the Penal Code. In a judgment given on 6 March 2012 

Sir John Muria CJ found the respondent not guilty and acquitted her. The Republic, pursuant to section 19B of the Court of Appeal Act 1980 appeals against the judgment.

2.	The Republic's grounds of appeal are:

(a)	The learned trial Judge erred in law and in fact in saying that the evidence was not sufficient beyond reasonable doubt to prove fraudulent embezzlement.

(b)	The learned trial Judge misdirected himself in saying that the inference raised by the prosecution relates to all monies handed over to the respondent.

(c)	The learned trial Judge misdirected himself in saying that the amount shown on a charge was an issue or element of the charge.

(d)	The learned trial Judge erred in law in not considering a lower offence and whether there is sufficient evidence to prove such.

BACKGROUND

3.	In June 2009 the respondent was employed as a cashier in the Office of the Beretitenti in Bairiki Tarawa (the Office). She had previously been employed for more than nine years as an accounts clerk by the Ministry of Environment.

4.	On 26 August 2009 an inspection of accounting records was carried out at the Office. The reason for the inspection was discrepancies between moneys receipted and moneys banked. A report prepared as a result of the inspection showed cash received exceeded cash banked by $8,053.50.

5.	It was the respondent's duty to receive and receipt the cash received, although contrary to the Financial Regulations other employees also issued receipts when the Respondent was not available. These moneys were often held by such employees for days before being given to the respondent.

6.	The procedure when an employee handed money to the respondent was for the money to be checked against copies of the receipts and when reconciled for the copies of the receipts to be initialed by the respondent.

THE JUDGMENT

7.	The Chief Justice analysed the elements of the offence of embezzlement as:

(a)	The fraudulent conversion of the property (money) belonging to another;

(b)	That the property was in the possession of the accused; and

(c)	Criminal intent.

8.	After analysing the evidence, the Chief Justice found;

(a)	Having anxiously considered the evidence both from the prosecution and the defence, this Court cannot reasonably be satisfied that the first consideration has been made out to the required standard in a criminal case. 

That is that he was not satisfied that the possession element had been established.

(b)	The next aspect of the prosecution case does not exist. There is no evidence whatsoever that the accused fraudulently or dishonestly used any of the money complained of for herself or for her benefit. There is not a single drop of evidence to demonstrate that the accused used any money collected and in her possession for herself or for her family or for her own benefit. No evidence had been adduced to show that the accused had a different life-style while she as employed in the Accounts Section in the Office of the Beretitenti. There is simply no evidence that the accused dealt with the money said to be collected in any fraudulent manner.

9.	The Chief Justice commented on the practices in the Office and said:

"While a breach of the financial regulation is no defence to the charge against the accused, it certainly compounded the difficulty faced by the prosecution in honing the evidence needed in a case such as this. What I can deduce on the evidence before the Court is that the practice of handling revenue collection in the Account Section in the Office of the Beretitenti in June-July 2009 was, at the very least, risky and open to abuse. It is therefore not surprising to note the finding of the Inspection Team, in their Inspection Report that Nei Kaaka Kamaua (accused) was "very careless with handling of cash and to cover up her shortage as early as possible". See Inspection – OB Account, dated 27 August 2009 – "Exhibit 7". That was exactly what had happened in this case. That is not fraudulent embezzlement".

THE REPUBLIC'S SUBMISSIONS

10.	Although the Republic had four grounds of appeal they may be summarised so:

(a)	There was sufficient evidence to establish the elements beyond reasonable doubt; and

(b)	Alternatively, if an element of the offence was not so established, the Chief Justice should have substituted the lesser charge of stealing under section 266 of the Penal Code.

11.	The evidence which the Republic submits was sufficient to get to the required standard of proof was that the respondent received moneys in respect of which she issued receipts together with money in respect of which other employees issued receipts, placed that money in the safe to which she had the only key and that those moneys were not banked. The only inference to be drawn is that those moneys were taken by the respondent for her own use.

12.	The submission that the offence of stealing should be substituted is because the element of "received or taken into possession" by the accused is not an element of such an offence.

THE RESPONDENT'S SUBMISSIONS

13.	Mr Berina for the respondent conceded that it was open to this Court to find that in respect of some of the missing moneys had been in the possession of the respondent. However, he submitted that despite this concession the Chief Justice was still entitled on the evidence to have acquitted the accused. This is because of the quality of the evidence.

14.	Evidence referred to by Counsel included:

(a)	A report from three members of the Accounts Division of the Ministry of Finance and Economic Planning dated 27 August 2009 made into the missing funds which concluded:-

"The Inspection members strongly recommend that Nei Kaaka should be removed from O.B. Office as she is unfit to be a revenue Cashier. She is very careless with handling of Cash and to cover up her shortage as early as possible".

(b)	The respondent's own evidence that she was not in a safe place beside a corridor, that she sometimes put moneys in a drawer while she was doing other things, and that the money could have been taken by someone else when she was doing other things.

15.	Reliance was also placed on the facts that prior to her appointment to the Office the respondent had served as an accounts clerk in another Government Department for nearly ten years; she got into trouble within three weeks of taking up her job with the Office; she reported the matter to another staff member when she first found money missing; and that there was no evidence led that her lifestyle had changed.

DISCUSSION

16.	The evidence clearly established that the respondent receipted $2,935 which was not banked and that she received from other employees and did not bank a further $305. In respect of this total of $3,240 this Court respectfully disagree with the Chief Justice when he found that he was not reasonably satisfied that the possession element had been made out to the required standard in a criminal case. At least $3,240 was in the respondent's possession and if the other elements are established she is guilty as charged for that amount.

17.	There may be an inference, as submitted by Ms Beiatau, in respect of the balance of the moneys. However, that is not the only inference available from the facts. There is another possibility, from the evidence, namely that she did not receive the money from the other employees. Appeal courts are reluctant to disagree with a factual finding of the trial judge in cases where credibility is an issue. Credibility is an issue in this case and this Court is not prepared to draw the inference which the Republic says should be drawn. It is not prepared to find that any moneys apart from the sum of $3,240 came into the respondent's possession.

18.	It was also necessary to establish beyond reasonable doubt that the respondent fraudulently took the moneys with an intention to deprive the Republic permanently of the money. The Chief Justice found that there was no evidence whatsoever that the respondent fraudulently or dishonestly used any of the money for herself or for her benefit.

19.	There is substance in the Republic's submission that an inference can be drawn from the facts that the respondent had at least $3,240 in her possession and did not bank it. If as Ms Beiatau submitted the only inference which can be drawn from these facts is that the respondent embezzled the money, then she should not have been acquitted. A fact which supports this inference is that four other employees receipted money and it is unlikely that all four failed to account to the respondent for the moneys so collected. On the basis of this evidence it is probable that the respondent had more, if not all, of the missing moneys in her possession.

20.	The Court accepts that on these facts there is a strong suspicion that the respondent fraudulently embezzled the moneys. However, there is another inference available. It is that the moneys were taken by someone else. The careless approach of the respondent and the fact that at times she kept money in a draw near a corridor means that this was possible.

21.	In this case the Chief Justice had the benefit of hearing from all the employees in the relevant accounts department in the Office. It is apparent from his judgment that he was aware of the other possibility. He had the opportunity of assessing the credibility of all witnesses, including the respondent who gave evidence, and was of the view that the respondent did not fraudulently embezzle the moneys. It is not appropriate for this Court to come to a different view in the circumstances. It did not hear and cannot assess credibility.

RESULT

22.	The appeal is dismissed.

COSTS

23.	The respondent requested costs. Costs are not available in a criminal appeal.

Paterson JA

Williams JA

Barker JA