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Nofoaiga v Attorney General [2004] WSSC 13 (8 November 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of an application by ONOSAI NOFOAIGA male of Lefaga charged with 95 counts of theft as a servant under sections 85 and 86 (1)(g) of the Crimes Ordinance 1961 and with 64 counts of wilfully falsifying accounts under section 98 of the same Ordinance to vacate the Guilty Pleas and substituted with Not Guilty Pleas and substituted with Not Guilty Pleas pursuant to section 54 of the Criminal Procedure Act 1972.

BETWEEN

ONOSAI NOFOAIGA
male of Lefaga unemployed.
Applicant/Defendant

AND

THE ATTORNEY GENERAL
for and on behalf of the Police.
Respondent/Informant

Counsel: TV Eti for applicant
K Koria for respondent

Judgment: 8 November 2004

JUDGMENT OF SAPOLU CJ

The Court is here concerned with an application under s.54 of the Criminal Procedures Act 1972 to withdraw a plea of guilty and to have it substituted with a plea of not guilty.

The applicant was originally charged with 193 counts of theft as a servant and of falsifying accounts under s.85 and s.98 of the Crimes Ordinance 1961 respectively. He pleaded not guilty to all the charges. When the matter came up for hearing, the respondent (the prosecution) withdrew 33 of the charges. The applicant after consultations with and on the advice of his counsel, then changed his plea of not guilty to the remaining charges and entered a plea of guilty. The remaining charges consist of 95 counts of theft as a servant and 65 counts of falsifying accounts. The matter was then adjourned for a probation report and sentencing. A summary of facts submitted by the respondent shows the total amount involved to be $183,604.63.

On the date of sentencing, counsel for the applicant informed the Court that the applicant would like to withdraw his plea of guilty and to re-enter a not guilty plea to the remaining charges. The matter was then further adjourned for the applicant to file a formal application for withdrawal of his guilty plea setting out the grounds for the application. When the application was filed, the grounds shown were: (a) the applicant was following the instructions of his supervisor at the time, (b) the applicant did not have the intention to defraud Polynesian Airline Co Ltd his former employer, (c) the applicant did not take or use the money in question, and (d) upon the further grounds appearing in the applicant’s affidavit which was filed together with his application. An amended application reciting the same grounds was later filed. The matter was then further adjourned for the respondent to file a response. Separate affidavits were accordingly filed by three current employees of Polynesian Airline Co Ltd whose names are referred to in the applicant’s affidavit. Subsequently, two further affidavits were filed for the applicant in August and another affidavit was filed for the respondent in September. Because of the conflicts between certain parts of the affidavits filed for the applicant and certain parts of the affidavits filed for the respondent, and the difficulty of resolving those conflicts on the basis of the affidavits alone, the parties were required to call the deponents to give oral testimony in relation to the conflicting parts of their affidavits. The hearing of that oral testimony was held on 6 September and 18 October. Written submissions by both counsel were then filed on 22 October.

The principles to be applied by the Court in determining how its discretion should be exercised in a pre-sentence application to withdraw a guilty plea under s.54 of the Criminal Procedure Act 1972 and to have it substituted with a not guilty plea, have already been set out in the decisions of this Court in Police v Mafuao Gaia (2000) (unreported judgment delivered on 11 February 2000) and Police v Reopoamo Ekalesia (2003) (unreported judgment delivered on 13 August 2003). The overall guilding principle in the exercise of the Court’s discretion is whether it is in the interests of justice that leave should be granted to have a plea of guilty withdrawn and to substitute it with a plea of not guilty. The discretion will be exercised in favour of a pre-sentence application for a change of a plea of guilty to one of not guilty where the Court is satisfied that: (a) the accused has not really pleaded guilty, (b) there has been a mistake, or (c) there is a clear defence.

In the present application, the applicant is in effect saying that he has a clear defence to the remaining charges against him. This is reflected from the first three grounds of the application, namely, that the applicant was following the instructions of his supervisor at the material times, the applicant did not have the intention to defraud his former employer, and the applicant did not take the money with which he has been charged. The fourth ground of the application which refers to the applicant’s supporting affidavit is really for the purpose of trying to lend weight and support to the first three grounds.

At all material times the applicant was employed by Polynesian Airline Co Ltd in its accounts receivable section which is responsible for collecting all the debts owed to the company. The applicant says in his affidavit sworn on 6 May 2004 that the reason for his present application is because he had not divulged all matters relating to the charges against him to his lawyer but after he had divulged to his lawyer all that which had transpired, he was advised that there were defences available to him. Obviously counsel for the applicant did not have before him at that time the affidavits which have subsequently been filed for the respondent or the oral testimonies given by the deponents of those affidavits.

In his affidavit, the applicant now denies the first 52 charges of theft as a servant relating to the period 8 December 1998 to 1 January 2002. He says that every annual financial report of the accounts receivable section was checked by Sala Petelo Vaioulu, the then manager financial services of the company and supervisor of the debtors recoverable section, before it was referred for internal and external audit. He also says that the accounts of the debtors recoverable section for the period 8 December 1998 to 1 January 2002 had been audited by Agnes Pouafe, the internal auditor for the company, and then by overseas external auditors and none of the reports of those audits showed any of the discrepancies with which he has been charged. The applicant in his affidavit also denies the charges of theft as a servant numbered 52 to 95 relating to the period 24 January 2002 to 1 January 2003. He said that his supervisor, Sala Petelo Vaioulu, had conducted an audit for the period ending June 2002 without any of the discrepancies with which he has been charged. He also says that he honestly believes that the report prepared by Mr Vaioulu for the audit he conducted in 2002 did not mention any of the allegations with which he has been charged.

In his oral testimony given during his examination in chief, the applicant maintained his position as set out in his affidavit. Under cross-examination, he said, however, that he had never seen a report of the audit he says to have been conducted by Mr Vaioulu in 2002. He merely believed that Mr Vaioulu made such a report as that is how the company should function.

In his affidavit sworn on 21 June 2004, Mr Vaioulu, now the general manager commercial for Polynesian Airline Co Ltd, says that the checks referred to by the applicant in his affidavit were the periodic reviews he used to carry out of the debtors trial balances prepared by the applicant and his staff at the accounts receivable section. Mr Vaioulu also says in his affidavit that the applicant was the supervisor of the accounts receivable section and was responsible for the accuracy and truthfulness of the data contained in the debtors trial balances. He also says that the reconciliation of accounts was the responsibility of the applicant and his staff. Mr Vaioulu also denies that he prepared any audit report in 2002 or conducted an audit in that year as alleged by the applicant. He says that the auditing of accounts was the role of Agnes Pouafe the internal auditor. Mr Vaioulu’s oral testimony is consistent with what is contained in his affidavit.

In her affidavit sworn on 18 June 2004, Agnes Pouafe, the internal auditor for Polynesian Airline Co Ltd, says that she had conducted regular internal audits between December 1998 and January 2001 of the accounts receivable section of the finance department of the company. Those audits did not detect any discrepancies because they were based only on the statistical samples provided by the accounts receivable section. Reliance was placed on the truthfulness of the data contained in the samples provided. She also says that in 2002 she conducted a special audit for the accounts receivable section because Mr Vaioulu, the then manager financial services, was going to be promoted to the position of general manager commercial, and the accounting system for the accounts recoverable section needed to be cleared before the new manager financial services took up duties. It was during that special audit, according to Mrs Pouafe, that discrepancies with which the applicant has been charged were discovered. In her oral testimony given during examination in chief Mrs Pouafe further stated that when the said discrepancies were discovered, she reported them to the management of the company who instructed her to re-audit the period 1998 to 2001. She did that and found the discrepancies with which the applicant has been charged.

On the evidence that I have referred to, I cannot see any clear defence for the applicant to the charges of theft as a servant and of falsifying accounts against him. Essentially what he is saying is that the audits which had been carried out for the period 1998 to 2002 on the accounts kept by the accounts receivable section did not find any of the discrepancies with which he is now being charged. However, simply because the audit checks did not discover the discrepancies with which he is now being charged does not mean that he did not commit those discrepancies. Mrs Pouafe, the company’s internal auditor, said that the regular internal audits she conducted between December 1998 and January 2001 were based on the statistical samples provided by the accounts receivable section in which the applicant was working. And she relied during those audits on the truthfulness of the data contained in those samples. The clear inference is that the discrepancies with which the applicant is now being charged were not discovered during the said audits because they were not shown in the statistical samples provided by the accounts receivable section to Mrs Pouafe. It was only during the special audit that was carried out by Mrs Pouafe in 2002, when the accounting system in the accounts receivable section needed to be cleared before the new manager financial services took up duties, that the discrepancies were discovered. Mr Vaioulu also denied that he conducted any audit in 2002 and prepared a report on such audit as alleged by the applicant. Under cross-examination the applicant said he had not seen such a report but he thought such a report was prepared.

In her affidavit, Agnes Pouafe also says that on 2 August 2002, a meeting was held at the company’s premises and present at the meeting were the chief executive officer of the company, the new manager financial services, herself, and the applicant. At that meeting, according to Mrs Pouafe, the applicant admitted being dishonest to the company and he said that he was prepared to go to jail in order for the company to stop the investigation of the charges against him. In her oral testimony, Mrs Pouafe maintained this position. The new manager financial services, Daisy Roebeck, also says in her affidavit sworn on 18 June 2004 that she was present at the meeting held on 2 August 2002 together with the company’s chief executive officer, Agnes Pouafe, and the applicant. She says in that meeting the applicant apologised and said that he was prepared to go to jail that day to stop further investigations into the matter; he also said he would pay back whatever amount he owed the company. Mrs Roebeck maintained the same position in her oral testimony. The applicant, on the other hand, testified in his oral testimony that he never returned to the company’s premises after his employment was terminated on 31 July 2002. The implication, of course, was that there was no meeting held on 2 August 2002 as deposed to and testified by Agnes Pouafe and Daisy Roebeck. In assessing this aspect of the evidence, I have no difficulty in accepting the evidence given by Agnes Pouafe and Daisy Roebeck.

Pausing here for a moment, what was said by the applicant at the meeting attended by himself, the witnesses Agnes Pouafe and Daisy Roebeck, and the company’s chief executive officer, does not support any defence to the charges against him. If anything, what he said at that meeting negates any defence and the grounds he put forward in support of his application for change of plea.

The applicant in his affidavit of 6 May 2004, also says that on 28 June 2003, Mr Vaioulu visited him on 28 June 2003 at his home at Savaia, Lefaga. Mr Vaioulu said to him that he had discussed the applicant’s case with Agnes Pouafe and Daisy Rioebeck and had told them the allegations against him were incorrect and that they should drop the case. He also says in his affidavit that Mr Vaioulu told him that he (Mr Vaioulu) had advised Agnes Pouafe and Daisy Roebeck not to pursue the case as there was insufficient evidence. The applicant further says in his affidavit that he had asked the applicant about other company employees who had stolen substantial sums of money from the company but were not charged. Affidavits sworn on 30 August 2004 were filed by Aloese Onosai Nofoaiga, the applicant’s wife, and Onosai Sene, a relative of the applicant. These two deponents say in their respective affidavits and in their oral testimonies that they were present when Mr Vaioulu visited the applicant at his home at Savaia, Lefaga. What they say generally supports what the applicant says.

Mr Vaioulu in his affidavit of 21 June 2004 and in his oral testimony denied what the applicant says in his affidavit. He also denied what was said by Aloese Onosai Nofoaiga and Onosai Sene. According to Mr Vaioulu, he visited the applicant at his home because of a false statement the applicant had published in the Samoa Observer newspaper regarding this matter. The applicant apologised and said that he was pressured by a parliamentarian in his family. Mr Vaioulu also denied that he had told Agnes Pouafe and Daisy Roebeck to drop the charges against the applicant and he had had no discussion with them to drop the charges. A copy of the relevant 22 June 2003 issue of the Samoa Observer newspaper was produced by the respondent as an exhibit. In her affidavit of 18 June 2004 and in her oral testimony, Mrs Pouafe denied that there was any discussion between Mr Vaioulu, Daisy Roebeck and her herself to drop the charges against the applicant. Further Mr Vaioulu had never told her not to pursue the case against the applicant because of insufficient evidence. Mrs Roebeck in her affidavit of 18 June 2004 and in her oral testimony made the same denials.

I have not found it necessary to come to any conclusive finding whether the applicant is right or Mr Vaioulu is right as to what transpired during their meeting at the applicant’s home because either version of what transpired provides no clear defence to the charges against the applicant. There is also the evidence given by Mrs Pouafe and Mrs Roebeck, which I accept, that there was never any discussion between Mr Vaioulu and the two of them to drop the charges against the applicant. Likewise, if the applicant is right that there are other company employees who have stolen substantial sums of money from the company but have not been prosecuted, that provides no excuse for any other company employee or the applicant to commit the same unlawful act.

All in all then, the pre-sentence application to withdraw the plea of guilty to the remaining charges and to substitute it with a plea of not guilty is dismissed.

The matter is adjourned to 15 November 2004 for sentencing. Bail to continue.

CHIEF JUSTICE

Solicitors:
TV Eti Law for applicant
Attorney General’s Office for respondent