IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

AMONA TUGAGA
female of Siusega and Vaivase-tai.
Accused

Counsel: G Patu and F Lagaaia for prosecution
S Samau for accused

Judgment: 17 February 2010 

JUDGMENT OF SAPOLU CJ

The charges

1.	After withdrawing one charge of theft as a servant against the accused, the prosecution proceeded against the accused with six charges of theft as a servant. In its closing written submissions, the prosecution seeks to amend those six charges pursuant to s.36 of the Criminal Procedure Act 1972. The effect of the amendment is to show that the monies alleged to have been stolen by the accused were monies in her possession as a servant of her employer instead of monies which are the property of her employer. I have decided to grant the amendment sought by the prosecution as I do not see any undue prejudice to the case for the accused in doing so.

2.	The evidence adduced by the prosecution also shows that the first act of theft alleged against the accused occurred at Savalalo where the National Bank of Samoa has a branch whereas the remaining acts of theft alleged against the accused occurred at Vaimea the complainant's place of employment. However, all the charges allege that the said acts of theft occurred at Matafele. I have also decided to further amend the charges to show that the first alleged act of theft occurred at Savalalo and the remaining alleged acts of theft occurred at Vaimea. Again, I do not see any prejudice to the case for the accused in this being done. As amended, the charges allege:

(a)	That at Savalalo on the 8th day of January 2009 the accused, being a servant of the National Bank of Samoa Ltd, did receive the sum of $1,000 from the complainant, a customer of the said bank, and steal it for her personal use;

(b)	That at Vaimea on the 3rd day of February 2009, the accused, being a servant of the National Bank of Samoa Ltd, did receive the sum of $500 from the complainant, a customer of the said bank, and steal it for her personal use;

(c)	That at Vaimea on the 18th day of February 2009 the accused, being a servant of the National Bank of Samoa Ltd, did receive the sum of $800 from the complainant, a customer of the said bank, and steal it for her personal use;

(d)	That at Vaimea on the 26th day of February 2009 the accused, being a servant of the National Bank of Samoa Ltd, did receive the sum of $900 from the complainant, a customer of the said bank, and steal it for her personal use;

(e)	That at Vaimea on the 12th day of March 2009 the accused, being a servant of the National Bank of Samoa Ltd, did receive the sum of $1,000 from the complainant, a customer of the said bank, and steal it for her personal use; and

(f)	That at Vaimea on the 26th day of March 2009 the accused, being a servant of the National Bank of Samoa Ltd, did receive the sum of $1,000 from the complainant, a customer of the said bank, and steal it for her personal use.

3.	The charges as amended have been laid by the prosecution under the theft provisions of s.85 of the Crimes Ordinance 1961 and the penalty provisions of s.86(1)(h) of the same Ordinance. Section 86(1)(h) provides for a maximum penalty of seven years imprisonment if the property stolen was in the possession of the accused as a servant. The principal amendment to the charges reflects the correct penalty provision which is relevant to this case.

The evidence 

4.	After giving careful consideration to the evidence of the complainant and that of the accused, I have decided that where they differ in material respects, the evidence of the complainant is to be preferred as more credible. The complainant in this case is one Tuitogamatoe Josephine Hicks. She is a customer of the National Bank of Samoa (hereinafter referred to as "the bank"). She has a loan account with the bank. The accused, on the other hand, was at the material times employed as a loan analyst at the bank. She was also the account manager for the complainant's loan account with the bank. Apparently, the accused is a close and trusted friend of the complainant.

5.	The complainant's loan is secured with her mother's land. The loan fell into arrears and the complainant started making cash payments to catch up with her arrears. Those cash payments were made directly to the accused.

6.	According to the evidence of the complainant, the first such cash payment which she made to the accused was for the sum of $2,000. That payment was made on 8 January 2009. It was outside the branch of the bank at Savalalo as it was after 3pm in the afternoon and the bank had closed. No receipt was issued for that payment. The accused in her evidence admitted that she took $1,000 of that money for her own use and deposited only $1,000 into the complainant's account the following week. That must have been on 14 January 2009 as shown from the e-mail sent by the bank's manager credit on 8 April 2009 to the complainant.

7.	In respect of the other cash payments made by the complainant to the accused, the complainant testified that the accused would come to her office at Vaimea and it was there that she gave the monies to her. The complainant also said that the accused showed concern for her loan arrears and was always pushing her to catch up with her arrears. However, no receipts were issued to the complainant for her payments. The complainant said the accused simply told her that the receipts would be filed with her loan account and she trusted the accused. She also said that she would not have made those payments to the accused if the accused was not her trusted friend and loan account manager. She also denied during cross-examination by counsel for the accused that she had asked the accused to come to her office to pick up her payments for she was embarrassed to go to the bank and made her payments there. The complainant said this does not make sense as she was never embarrassed to go to the bank.

8.	The complainant was also sure of the payments she made to the accused because she had noted them in her work diary. According to the complainant, she paid to the accused $2,000 on 8 January 2009, $500 on 3 February 2009, $800 on 18 February 2009, $900 on 26 February 2009, $1,000 on 12 March 2009, and $1,000 on 26 March 2009. The accused in her evidence admitted to having being paid those monies by the complainant except for the amount of $1,000 on 26 March 2009 which she cannot recall having received. She also admitted in her evidence that, except for the sum of $1,000 out of the $2,000 which the complainant gave to her on 8 January 2009, she did not deposit into the complainant's loan account the other monies she received from her. Instead, she took those monies for her own personal use.

9.	I have given careful consideration to the evidence by the accused that she cannot recall having received from the complainant the sum of $1,000 which the complainant claims to have given her on 26 March 2009, and I have decided to accept the complainant's evidence that she did give that money to the accused on 26 March 2009. As already mentioned, the complainant testified that she noted the payments she made to the accused in her work diary.

10.	It also appears from part of the documentary evidence which was adduced by the prosecution that after the complainant was informed by e-mail dated 8 April 2009 by the bank's manager credit that her loan was in arrears and the bank has referred her loan to its recovery section to proceed with the mortgagee sale of the loan security, the complainant by e-mail dated 15 April 2009 requested the accused for an outline of what she, the complainant, has paid, her arrears, and the balance of her loan. By e-mail dated 17 April 2008, the accused replied, in so far as it is presently relevant: "Here's the outline: $900, $500, $800, $1,000 and last week's $1,000 total = $4,200 of what you've paid". The complainant, upon receipt of the accused's e-mail, immediately e-mailed back to the accused asking her to double check her numbers as she, the complainant, has paid more than $4,200. About one and a half hour later on the same day, the accused e-mailed back to the complainant. In that e-mail, it is acknowledged by the accused that the complainant had also made a first payment of $2,000 in January 2009. 

11.	In other words, it was acknowledged by the accused in the two e-mails she had sent to the complainant on 17 April 2009 that she had received from the complainant the amounts of $2,000, $900, $500, $800, $1,000 and $1,000. This is exactly the same as the amounts the complainant is now claiming to have paid to the accused. It is also those six amounts which form the subject matter of the six charges against the accused. The only difference between what the complainant is claiming and what the accused is saying in her e-mails relates to when the last payment of $1,000 was made. The complainant has testified that payment was given to the accused on 26 March 2009 whereas the accused seems to be saying in one of her e-mails of 17 April 2009 that it was given to her in the second week of April 2009. I have decided to accept the evidence by the complainant that it was on 26 March 2009 that she gave $1,000 to the accused because the complainant's evidence is supported by a notation in her work diary.

12.	There was no dispute that the loan repayments by a customer should be made at the bank. There was also no dispute that it was not within the accused's responsibilities to collect loan repayments from the complainant or any customer of the bank. It was also not proper and contrary to bank policy for the accused to collect loan repayments from the complainant and then took them for her own personal use. The accused, however, testified that when she took the complainant's monies for her own personal use she had the intention to repay. After careful consideration of the evidence, I have decided not to believe this part of the accused's evidence.

13.	What happened, as it appears from the documentary evidence, was that after the bank's manager credit informed the complainant by e-mail dated 8 April 2009 that her loan is more than $7,700 in arrears and it has been referred to the bank's recovery section to proceed with the mortgagee sale of the loan security, the complainant replied by e-mail of the same date that she has been making payments to the accused. In her opinion the arrears should have between $2,000 and $3,000 and not more than $7,700. However, when the complainant called the accused about the matter, the latter said that the arrears were only about $1,000. This was not true. Anyhow, the complainant e-mailed the bank's manager credit the same day and reported to him what the accused has said. By e-mail dated 14 April 2009, the manager credit advised the accused of what the complainant has reported to him. He then points out in the same e-mail to the accused that either the complainant or her is not telling the truth.

14.	The accused replied by e-mail dated 15 April 2009 to the e-mail dated 14 April 2009 from the manager credit. In the context of what is now known about this case, this e-mail by the accused is vague, evasive and deliberately misleading in several respects. Amongst other things, the accused states in her e-mail that she had a deal with the complainant in which she thought that the money she collected from the complainant was supposed to clear "her part". There was, of course, no such deal between the complainant and the accused and so what the accused was saying about a deal between herself and the complainant was not true.

15.	By e-mail of the same date, 15 April 2009, the manager credit required the accused to explain several aspects of her e-mail including what she means by saying "this money that I collected from her was supposed to clear my part". The accused replied by e-mail of the same date. I also find this e-mail by the accused quite misleading and untruthful in several respects. Amongst other things, she says that she had made a personal deal with the complainant in August the previous year for her to advance to the complainant $3,000 for the deposit of a pick-up vehicle. However, the complainant sold the pick-up vehicle to someone without getting back to her. And she had used the total sum of $2,200 that she collected from the complainant to pay off some of her debts. All of this is also not true.

16.	It is also clear that the aforementioned e-mails dated 17 April 2009 which the accused sent to the complainant are totally misleading and untruthful in several respects. It is also clear that what the accused was telling the manager credit in her e-mails of 15 April 2009 is quite different from what she was telling the complainant in her e-mails of 17 April 2009. She was giving two different explanations to two different people about the same matter. In none of those e-mails does the accused admit to having improperly or unlawfully taken the monies given by the complainant to her for repayment of the complainant's loan with the bank. There is also no mention by the accused in any of those e-mails of any intention to repay the complainant's money she had taken for her own personal use.

17.	The bank's manager lending was one of the other witnesses called by the prosecution. She testified that at the material times the accused was working under her control and supervision as a loan analyst. She said that she became aware of some loan accounts, including that of the complainant, which were in arrears and everyday she would ask the accused about those accounts. In respect of the complainant's loan amount, the accused would reply not to worry, it is under control. When the arrears on the complainant's loan account kept increasing, the manager lending said she asked the accused whether she has sent a letter of demand to the complainant. The accused replied she has done so. What the accused told the manager lending was also not true.

18.	Then on Sunday 19 April 2009, the manager lending who is a close friend of the complainant's mother and goes to the same church as the complainant's mother, met the complainant's mother at their church and expressed her concern to the complainant's mother about her daughter's loan account with the bank. The next morning, Monday 20 April 2009, the complainant's mother made an appointment for her and her daughter to see the manager lending at the bank the same morning. The manager lending then asked the accused for the file on the complainant's loan account as the complainant and her mother were coming to see her that same morning. It was then that the accused told the manager lending that she has used $4,200 being monies given to her by the complainant to pay her loan. There was no mention by the accused to the manager lending that she had any intention to repay the money.

19.	After the manager lending had met with the complainant and her mother on 20 April 2009, she then met with the manager credit and the accused. There is no mention in the evidence that at that meeting on 20 April 2009 the accused said anything about any intention on her part to repay the complainant's money she had taken for her own personal use. What the manager lending said is that at that meeting, the accused simply said she will get the money from another bank and pay back the money she took. However, according to the evidence of the manager lending, it was not until 24 May 2009 that the accused paid $5,200.

20.	The bank's manager risk and assurance was also called as a witness by the prosecution. He testified that on Monday afternoon 20 April 2009, he met with the bank's manager human resources and the accused about the amount of $4,200 she had earlier admitted that day to the manager lending to have taken from the complainant's loan repayments. The accused maintained her previous admission to the manager lending at that meeting. The manager risk and assurance also asked the accused if she can come up with the amount of $4,200 she told the manager lending she could get and the accused replied yes. The accused was then asked to get that money. It appears that at no time during that meeting did the accused say that at the time she took the complainant's money she had an intention to repay.

21.	The accused, as the evidence shows, paid to the bank $5,200 which is more than the total amount of $4,200 she admitted to the bank to have taken. However, this amount of $5,200 is equal to the total amount of the monies the complainant testified she gave to the accused but the accused did not deposit into her loan account. It is also equal to the total amount of the monies acknowledged by the accused in her two e-mails dated 17 April 2009 to the complainant less the $1,000 she deposited on 14 January 2009 into the complainant's loan account. By repeatedly admitting to the bank that she took $4,200 but then paid $5,200 suggests that the accused was well aware of the total amount of the complainant's monies she had taken but was not making a full disclosure to the bank.

22.	In her oral evidence, the accused testified that at the material time she was building a house and had some debts to pay. That was why she took the complainant's money. She also said she had the intention to repay the complainant's money and she had the means to do so. She referred to a joint account she had with her mother at another bank. She also said her mother was overseas at the time.

23.	I regret to say that the accused, as it appears from the evidence, has told so many untruths that I simply cannot believe her evidence. In any event, if she really had the means to repay as she said she had, then why did she take the complainant's money instead of using her own money to pay her debts. She could have obtained her mother's authority from overseas, if her mother was overseas at that time, and withdraw from their joint account any money she wanted to use to pay her debts. Furthermore, for more than three months from January 2009 to April 2009 she never did anything to repay the complainant's money. According to the evidence of the bank's manager lending, the money was not repaid until 24 May 2009. It is also to be noted that it was not until 20 April 2009 when the manager lending told the accused that the complainant and her mother were coming to see her about the complainant's loan account that the accused admitted to having taken $4,200 of the complainant's money. That was after the accused's e-mails of 15 April 2009 to the manager credit and her e-mails of 17 April 2009 to the complainant in which she never disclosed what she had done with the complainant's money. It was only when she gave evidence at this trial that she said that she had the intention to repay the complainant's money. I do not believe the accused's evidence.

Elements of theft

24.	In terms of s.85 of the Crimes Ordinance 1961, theft consists of three elements which the prosecution must prove beyond reasonable doubt. These are essentially:

(a)	There must be a taking, that is, a physical moving of an item;

(b)	The taking was fraudulent or dishonest; and

(c)	There was an intention to deprive the owner permanently of that item, that is, to keep it or deal with it as if it was the accused's own property.

Discussion

25.	The first and second elements of theft are not in dispute in this case. On the evidence, I am of the opinion that those two elements have been proven beyond reasonable doubt.

26.	It is the third element which has been in dispute. On the evidence that I have decided to accept, I do not believe that the accused at the times she took the complainant's money had any intention to repay that money. Her intention was clearly to deprive the complainant permanently of her money. It was only when she realised that her actions will be found out that she admitted to having taken the monies given by the complainant to her to pay the complainant's loan account. And it was only when she gave evidence at this trial that she said for the first time she had an intention to repay.

Conclusion

27.	I find all six charges against the accused to have been proven beyond reasonable doubt.

28.	This matter is adjourned to Wednesday 24 February 2009 at 12:30pm for a probation report and submissions by counsel. 

CHIEF JUSTICE

Solicitors
Attorney General's Office, Apia for prosecution
Tuala & Samau Law Firm for accused