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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR (FC) 119 OF 2021
STATE
V
VELE GENAMO
(No 1)
Waigani: Wawun-Kuvi, AJ
2022: 28th & 29th March, 3rd May & 6th June
CRIMINAL LAW-TRIAL-Stealing, section 347(1)(7)(10) Criminal Code-Whether physical cash monies were missing-Whether the accused was responsible for the missing cash-Whether he took the cash with an intent to permanently deprive the Bank?
The accused was charged with Stealing under section 347(1)(7) & (10) of the Criminal Code. The accused was employed as a teller with the Bank of South Pacific Limited. He worked out of the Jackson’s International Airport Terminal FXD branch. It was alleged that during 2 October 2019 and 7 October 2019, the accused stole United States currency in the sum of USD 9, 670.00 which was equivalent to K31, 033.37.
The accused stated that it was a balancing error and had he been given the opportunity, he would have reconciled the account.
Held:
Cases Cited
State v Kissip [2020] PGNC 17; N8184
Ikalom v The State [2019] SC1888
State v Karakabo [2012] N4897
The State v Hanaoi [2007] N4012
James Pari and Tine Bomai Kaupa [1993] PNGLR 173
Regina v Albert [1953] PGSC 8
Overseas Cases Cited
Illich v The Queen [1987] HCA 1; (1987) 162 CLR 110
Reference
Counsel
Ms Lilly Jack, for the State
Mr Jeffery Kolowe, for the Defence
VERDICT
6th June, 2022
1. WAWUN-KUVI, AJ: The accused Vele Genamo hails from Kelekapana Village, Abau District, Central Province. He was employed as a teller with the Bank of South Pacific.
2. The State indicted him for one count of stealing from Bank of South Pacific. To this charge, he pleaded not guilty, and a trial followed. This is the Court’s decision on verdict.
Charge
3. The accused was charged under section 372 (1) (7) & (10) of the Criminal Code as follows:
“.........he on an unknown date between the 2nd of October 2019 and 7th day of October 2019 in Port Moresby, National Capital District, in Papua New Guinea being an employee of Bank of South Pacific Limited stole cash monies in the sum of Nine Thousand Six Hundred and Seventy US Dollars (USD 9, 670) equivalent to Thirty One Thousand and Thirty Three Kina and Thirty-Seven Toea (K31, 033.37), the property of the Bank of South Pacific Limited.”
The Allegations
4. In support of the charge the State alleged that Vele Genamo was an employee of the Bank of South Pacific Limited (BSP) and had worked with BSP since February 2013. He commenced employment as a customer service officer and later became a teller.
5. In 2017, he was transferred to the Jackson’s International Terminal FXD BSP branch at 7 Mile. He worked as a foreign exchange teller. Between 2nd October 2019 and 7th October 2019, the accused stole cash monies in US Dollars in the sum of USD 9, 670.00. According to the then exchange rates the USD were equivalent to K31, 033.37.
6. It was alleged that he owed monies and so he stole the monies to give his creditors.
7. The short fall was discovered by his supervisor and his colleagues when they attempted to balance the cash. He had later admitted to taking only USD 6, 000.00.
Burden of Proof
8. The State bears the burden of proving its case beyond a reasonable doubt and of disproving any defence properly raised on the evidence beyond a reasonable doubt.
Elements of the Offence
The elements of stealing under Section 364 and 365 of the Criminal Code are:
(1) the movable property of another.[1]
(2) The accused moved the property by some physical act, i.e, asportation.[2]
(3) The accused took or converted the property to his own use or the use of another.[3]
(4) The accused took or converted the property with a fraudulent intent.[4]
Evidence
9. The State called Alex Kuna, Nicky Onom and Vagi Gugubo.
10. Nicky Onom is the arresting officer, and his evidence was in relation to the Record of Interview and the CCTV footage. He explains that he was not able to produce the CCTV footage because at the time he requested for the footage, he was informed that there was a technical error.
11. Alex Kuna is the Branch Manager for Waigani Banking Centre. The Jackson International FX branch falls within his responsibility. He gave evidence of the processes and procedures. His evidence in summary as it relates to the charge is that he was called to the Jackson Terminal because of the missing USD 9670.00. He went through the records with the supervisor and the accused and could not locate the cash. He questioned the accused and the accused informed him that he took the cash. He took him to the security office and left him with the investigators.
12. Vagi Gugubo’s evidence is also in relation to processes and procedures and of taking over the balancing from Vele Genamo. That he identified a short fall of USD 9 670.00. He checked for receipts and attempted to balance the account with the accused present; he could not do so. He asked the accused to return the cash if he had taken it, but the accused was of no assistance. The amount was put into the error account. He called Alex Kuna and informed him of the error.
13. Several documents marked as exhibit S1 to S19 were tendered into evidence which were later identified and explained by the witnesses.
Findings
14. Before proceeding onto my findings in relation to the facts I state here that there is no principle in law that requires me as a trier of fact to believe or disbelieve the whole of a witness evidence. Rather, I may believe none, part or all of the witness evidence and may attach different weight to different parts of the witness evidence. (James Pari and Tine Bomai Kaupa [1993] PNGLR 173 per Kapi DCJ)
15. The facts giving rise to this case are mostly undisputed. The processes and procedures are also undisputed.
16. There are no deposits or withdrawals made at the Jackson’s International FX branch. It is a foreign exchange branch where the Bank of South Pacific buys and sells currency for international travelers.
17. Each teller has a starting balance. This is the balance taken from the closing balance from the previous day. At the end of each day, the tellers count their cash and reconcile it with the receipts. The cash receipts are the receipts printed and given to the customer. The bank retains a copy. The supervisor then checks, and the records are entered into the computer system. The physical cash is deposited into the cash box or compartment.
18. There is a safe in the branch. The supervisor has a key to the safe and each teller has a key to the cash box or compartment. Only the teller has the key to his cash box or compartment. Each teller has their own compartment or cash box.
19. During the balancing at the end of each day and for some reason if the teller cannot balance, an error report is generated, and the record is moved into what is termed as an “error account”. The amount must be moved into the error account to enable the records to be balanced for the next day’s business. The error in the error account will only be resolved either by the teller going through the physical records and properly balancing or the bank accepting that monies have been stolen and pays the cash to clear the account.
20. There was a team of tellers that worked at the branch during the relevant period. Vagi Gugubo was the supervisor. The accused was one of three tellers who worked under the supervision of Vagi Gugubo. Each teller had their own teller ID. The accused teller ID was 2304.
21. The team worked from 2-4th October 2019 and had a day off on 5th October 2019. They commenced their shift again on Sunday 6 October 2019.
22. The ending balance for 4 October 2019 for the accused was USD 11 550.00. Consistent with records, the starting cash for the accused on 6 October 2019 was USD 11 550.00.
23. At the close of business on 6 October 2019, when Vagi Gugubo assisted the accused to close his account, there was a shortfall of USD 9, 670.00. After several attempts to reconcile the account failed, the amount was moved into the “error account” and escalated to management level.
24. This is where the dispute arises.
25. The Bank through Alex Kuna and Vagi Gugubo maintain that physical cash was stolen.
26. The accused on the other hand says that cash was not missing but instead there was a reconciliation mistake. He states that he falsely admitted in his interview with the arresting officer that he stole the monies. That he had intended to make the admissions so that he would be given an opportunity to go back to the branch and balance the records.
27. I accept the evidence of Alex Kuna and Vagi Gugubo.
28. Firstly, the accused does not dispute all aspects of their evidence other than to say that it was a balancing error. The effect of this is crucial because each man attempted several times to balance the accused account, with the accused present and could not do so. Both men are experienced employees in management positions. Vagi Gugubo being the supervisor and Alex Kuna being the Branch Manager. Alex Kuna has been employed with BSP for almost 30 years and has been a branch manager for 13 years. If this was a balancing error, one of both men could have simply located it.
29. Secondly, it was not challenged that the Bank had repaid the monies to enable the amount to be cleared from the error account. This evidence demonstrates that it was not a reconciliation mistake.
30. Thirdly and finally, the evidence of Alex Kuna and Vagi Gugubo are supported by the bank records which both men explained clearly.
31. I do not accept the accused evidence in Court that it was a reconciliation mistake and that he had lied to the arresting officer about taking the monies. His explanation is rejected for three reasons.
32. Firstly, it is inconsistent with common sense and logic. It defies belief that the accused made admissions to stealing significant amounts of money in the hope that he would be allowed to go back to work to resolve the error. Common sense dictates that when you admit to stealing from your employer, you would be terminated and not allowed back into the office. Especially for monies that amount to K31, 033.37.
33. Secondly, he was always present when not only his supervisor and but also the bank manager made several attempts to reconcile the records. There was nothing wrong with the records.
34. Thirdly and finally, the accused himself agreed that anyone can balance the records. It did not require him to balance the records. This demonstrates that he is lying to the court about making false admissions to the police. This is because any teller could rectify the balancing if it was a problem with reconciliation. And as stated above, it was not just any two tellers who attempted to reconcile the accounts, rather it was the accused supervisor and the Bank Manager.
35. The Bank Records as stated support the evidence of State witnesses that cash monies were missing.
36. The teller transaction log for 4 October 2019 exhibited as “S9” establish that the cash ending 4 October 2019 was USD 11 550.00.
37. The accused and his team did not work on Saturday 5 October 2019.
38. The teller transaction log for 6 October 2019 exhibited as “S11” demonstrates:
39. The table below demonstrates the missing cash.
| Cash in | Cash Out | ||
| Description | Amount | Description | Amount |
| Starting Cash | USD11, 550.00 | Bank sold USD | USD5595.00 |
| Cash transfer from supervisor | USD10, 000.00 | | |
| Customer exchange US$ for other currencies | USD1514.00 | | |
| TOTAL | USD 23, 064 | TOTAL | USD 5595.00 |
40. The difference from the cash in and cash out, shows that physical cash at close of business should have been USD 17, 469.00.
41. However physical cash was only USD 7, 799.00.
42. The difference of USD 17, 469.00 from USD7, 799.00 is USD 9670.00.
43. This was not a complicated process. There is cash from the previous day which has already been counted. The supervisor gives an additional sum for the day. Customers buy notes and the Bank sells notes. The customers are receipted, and the bank keeps a copy. At the close of business, the receipts are reconciled with the cash at the start of the day and the cash on hand.
44. The only conclusion which I accept is that physical cash monies in the sum of USD 9670.00 was missing.
45. The next question is what happened to the sum of USD 9670.00.
46. It is not disputed that each teller has their own key to their cash box or compartment. That after the accounts are balanced and checked by the supervisor, the teller puts the money away for the next day. The accused is the only person who had control of the physical cash up until the period of balancing. During the balancing, he was present with Vagi Gugubo when the cash was being counted. The only inference is that the accused was the person who took the cash monies.
47. I do not accept that he took the monies on other days, other than on 4th of October 2019. The reason is because on every other day, had cash been missing it would have still been detected by the supervisor, because the difference between the cash in and cash out would have been noticed. It was only on 6th October 2019 when the cash did not balance.
48. As to the CCTV footage, I accept the evidence of the arresting officer that at the time he attempted to have it download there was a technical problem. Alex Kuna did not view the CCTV footage; I accept his explanation that that is a matter that is for the security department to check. In terms of Vagi Gugubo, he explained that he did view the CCTV and did not see anything but explained that the CCTV cannot capture the position when someone is bent down at the safe.
49. The accused in his ROI states that he took the monies when he put the cash away after counting. This is consistent with Vagi Gugubo’s evidence of not seeing anything in the CCTV footage and with the conclusion that no other person was responsible other than the accused.
Conclusion
50. I am satisfied that cash monies in the sum of USD 9760.00 is the property of the Bank of South Pacific Limited. That it was taken out of the branch at Jacksons International. That the person who took the cash was the accused. That when the accused took the cash monies, he did so with an intent to permanently deprive the Bank of South Pacific Limited.
51. A verdict of guilty is returned.
Orders:
52. The Orders of the Court are:
________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Defence
[1] State v Kissip [2020] PGNC 17; N8184 and Illich v The Queen (1987) 162 CLR 110
[2] Regina v Albert [1953] PGSC 8 (1 April 1953), The State v Hanaoi [2007] N4012; State v Karakabo [2012] N4897; State v Kissip [2020] PGNC 17; N8184 and Ikalom v The State (2019) SC1888.
[3] The State v Hanaoi [2007] N4012; State v Karakabo [2012] N4897; State v Kissip [2020] PGNC 17; N8184 and Ikalom v The State (2019) SC1888
[4] The State v Hanaoi [2007] N4012; State v Karakabo [2012] N4897; State v Kissip [2020] PGNC 17; N8184 and Ikalom v The State (2019) SC1888
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