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Police v Tauauve'a [2012] WSSC 45 (21 September 2012)

SUPREME COURT OF SAMOA

Police v Tauauve’a [2012] WSSC 45

Case name: Police v Tauauve’a

Citation: [2012] WSSC 45

Decision date: 21 September 2012

Parties: Police and Seletute Tauauve’a

Hearing date(s): 3, 4 April 2012

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Vaai

On appeal from:

Order:

Representation:

Rexona Titi and Edelma Niumata for prosecution

Maiava Peteru for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Welham v Director of Public Prosecution (1961) AC 103

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO.

BETWEEN:

POLICE

Prosecution

AND

SELETUTE TAUAUVE’A female of Moamoa and Nukualofa Toga

Defendant

Counsel:

Rexona Titi and Eldema Niumata for prosecution

Maiava Peteru for the defendant

Ruling: 21 September 2012

RULING OF THE COURT

1. The accused is charged with two informations, each alleging the crime of theft as a servant contrary to sections 85 and 86 of the Crimes Ordinance 1961. She is also charged with six informations each alleging theft contrary to section 88 of the Crimes Ordinance which provides:

“Without in any way limiting the generality of the foregoing definition of theft, every person shall be deemed guilty of theft who holds, receives, or obtains any money, valuable obligation (whether arising from an express or implied trust, or from an express or implied trust, or from an express or implied contract, or from any other source whatsoever) to deal with such money, valuable security, or thing in any manner, and who fraudulently or dishonestly deals with it in any other manner, or fails to deal with it in accordance with such obligation.”

2. The accused is also charged with one information alleging making a false entry in a document with intent to defraud contrary to section 99 of the Crimes Ordinance.

Joint trial

3. As a matter of necessity to save time and avoid inconvenience to the witnesses and the court the trial of this accused was held jointly with the accused Alice Tapusoa.
4. Both accuseds at all relevant times were employed by Oceanic Communications Limited (the complainant) a company which distributes and sells mobile phone top up cards and phone to phone top up for the Digicel Mobile phone company.
5. Separate rulings will be issued in respect of the charges against each accused. This ruling will deal with the informations against the accused Seletute.

Duties of the accused and sales representatives

6. The defendant was employed in the Finance division of the complainant. She was the head cashier for the day shift. She receives, at the end of the day shifts, monies from all the sales representatives who went out to service the complainant’s customers, mainly shop owners and other retailers.
7. Each sales representative services a specific zone and a master phone is assigned for each. The master phone electronically sells phone credits to the retailers and each sale is automatically recorded in the system so that when the sales representative return to base at the end of the shift, his individual sales are already recorded and a cash sale summary form is printed out from the system by the defendant and given to the sales representative.
8. The printed summary form also records the 8% discount for each sale to a retailer.
9. Cash collected by the sales representative should agree with the amount on the printed form summary which the sales representative signs to acknowledge that the correct amount is given to the defendant as the cashier for that duty.
10. The defendant as the cashier checks the cash given by the sales representatives. She also signs the sales summary if the cash agrees with the summary. She then locks the money away.
11. The monies received are banked by the defendant the following day.

Informations 2439/11

12. It is alleged that between the 1^st and 4^th August 2011 the defendant stole $14,077 in cash, the property of her employer.
13. Tavita Leituala a sales representative of the complainant at the end of the day shift on the 2^nd August 2011 counted $17,313 in cash, signed the sales summary form for the same amount, gave both the cash and summary to the defendant who checked the cash and signed the summary to acknowledge receipt of the cash. On the following day the defendant was accompanied by the complainant’s accountant Ms Nair to the bank to bank the $17,313.
14. Before leaving for the bank, the defendant had already filled out a lodgment slip to bank the $17,313. The bank teller counted only $3,236 cash. A shortfall of $14,077.
15. The defendant told the court that earlier in the day on the 2^nd August 2011 before Tavita Leituala finished his shift, Tavita came to the bank where she was waiting to do the banking and gave her the $14,077 to balance her banking for that day. The balance amounting to $3,236 was given to her by Tavita at the end of his shift that day.
16. Tavita Leituala denied going to the bank on 2^nd August 2011. He denied giving $14,077 to the defendant at the bank. The full $17,313 was given by him to the defendant at the office at the end of his day shift on the 2^nd August.
17. The defendant told the complainant’s accountant when the discrepancy was uncovered at the bank that the shortfall was due to the other employees borrowing the money from her. She admitted that borrowing of the company monies was expressly forbidden.
18. Although the borrowing of money by employees was forbidden the defendant told the court that there was nothing she could do about it as the salespersons have already taken the money before they handed in the cash at the end of their shifts. In other words, the cash given to the defendant by the responsible sales person was short and did not reconcile with the printed summary which the defendant nevertheless signed knowing there was a shortfall. The defendant did however noted in her personal notebook the sales person and the shortage.
19. The sales persons concerned acknowledged they did borrow monies from the defendant but their borrowings were done after they had balanced their cash against the printed summary and after the defendant had signed the summary to acknowledge receipt of the correct amount. They denied any shortages in their cash they handed over to the defendant.

Discussion of Information 2439/11

20. The explanation by the defendant concerning the shortfall of $14,077 in the banking of the 3^rd August 2011 of the cash collected by Tavita Leituala the day before lacks sense and logic. When Tavita Leituala’s cash was checked at the end of his shift the bank had already closed. Leituala was out on the field and could not have met with the defendant at the bank earlier that day.
21. The shortfall in the banking on this day was significantly and overwhelming greater than the amounts borrowed by the other employees.
22. Shortage in banking on this occasion and on the other one signifies unlawful dealings by the defendant with the monies given to her by the sales representatives.
23. The court is satisfied beyond reasonable doubt that the defendant is guilty.

Informations 2440/11 and 2441/11

24. Information 2440/11 alleged that between the 1^st and 4^th August 2011 the defendant stole $10,210.
25. Information 2441/11 alleged that the defendant with intent to defraud, the defendant on the 2^nd August made a false entry in the ANZ Lodgment Book for the complainant’s account number 3500476 by entering the amount $10,210.10.
26. Both informations arose from the $10,210.10 given by the sales person Ta’ase Niutao to the defendant at the end of his shift on the 2^nd August 2011. Both the defendant and Taase Niutao signed the sales summary to acknowledge receipt by the defendant of the $10,210.10.
27. But the $10,210.10 was not banked the following day although the ANZ lodgment was filled in by the defendant for the purported banking of the $10,201 on the 3^rd August 2011.
28. The accused told the court the $10,210 was used by her on the 2^nd August (the day before) to balance her banking for that day. She also conceded that she filled in the deposit slip knowing that the $10,210.10 will not be banked. There was no money to bank.

Discussion

29. Again the defendant’s explanation cannot be seriously considered given that Niutao Taase’s cash was counted at the end of his shift when the bank was already closed on the 2^nd August 2011.
30. The totality of her evidence is that she used $14,077 from Tavita Leituala’s sales (information 2439/11) and $10,210.10 of Niutao Taase’s sales (total of $24,287.10) of the 2^nd August to balance her banking for that day.
31. Information 2440/11 alleging theft of $10,210 is proven beyond reasonable doubt.
32. Information 2441/11 requires the prosecution to prove beyond reasonable doubt that the defendant intended to defraud when she made the entries in the lodgment slip. The information does not state who the defendant intended to defraud. But it would have to be either the bank or the complainant. It is alleged she intended to defraud when on the 2^nd August 2011 she filled a deposit slip to bank $10,210.10 when she did not have that amount to deposit.
33. The form was intended for the bank to bank the $10,201.10. But it was never presented to the bank and even if it was presented the bank would have rejected it as there was no cash to accompany the slip. Indeed the defendant would not have bothered to go to the bank if she did not have the money to bank.
34. Neither could it be contended that it was intended to defraud the complainant simply the complainant by looking at the lodgment book after the 2^nd August 2011 would have known the money was not banked. In any event the money was intended to be banked on the 3^rd August not the 2^nd as it was received at the end of the day shift on the 2^nd.
35. There was no intent to practice a fraud on someone. See Welham v Director of Public Prosecution (1961) AC 103 Lord Denning at 133.
36. Information 2441/11 is dismissed.

Extended definition of Theft

37. The defendant is also charged with six informations pursuant to section 88 Crimes which states:

“Without in any way limiting the generality of the foregoing definition of theft, every person shall be deemed guilty of theft who holds, receives, or obtains any money, valuable obligation (whether arising from an express or implied trust, or from an express or implied trust, or from an express or implied contract, or from any other source whatsoever) to deal with such money, valuable security, or thing in any manner, and who fraudulently or dishonestly deals with it in any other manner, or fails to deal with it in accordance with such obligation.”

38. It is alleged by the prosecution that on six different occasions the defendant contrary to the express company policy and directions the defendant instead of banking the monies received by her, loaned portion of the money to some of the employees.
39. Information 2443/11 alleges that $500 was loaned to Niutao on the 2^nd August 2011. The defendant said Niutao was $500 short when he counted in his cash sales on the 2^nd August. Niutao told the court he borrowed $500 after his cash was checked and balanced.
40. The defendant signed Niutao’s sales summary on the 2^nd August 2011 acknowledging receipt of the full and correct amount.
41. Information 2443/11 is proved beyond reasonable doubt.
42. Information 2437/11 alleges the giving of $1600 to Sene Vaasili. The accused admits monies totalling $1600 were owing by this employee and they were shortfalls in his sales. Sene Vaasili said he requested the defendant on six different occasions and was given monies totalling $1600.
43. Allegation information 2437/11 is proven beyond reasonable doubt.
44. Information 2435/11 and 2442/11 allege that on two separate occasions the defendant lent $600 and $1400 to Alice Tapusoa. The allegations are not denied. She gave Alice Tapusoa $1400 and instructed another sales representative to give $600.
45. The allegations in the two informations are proved beyond reasonable doubt.

Informations 2438/11 and 2436/11

46. Pati Penaia on three separate occasions borrowed from the defendant cash totalling $280.
47. Lavilavi Asiata was given $100 by the defendant when he drove her home from work one evening.
48. The monies given to both men were seen to have been fetched from the defendant’s handbag. The defendant said it was her own money.
49. But she received an annual salary of $10,400 or $188 per week. The prosecution therefore suggests the money given to these two men belonged to the complainant.
50. I agree with the prosecution. But it does not necessarily result in the informations being proven because the monies given could have come from the monies in which she has been found guilty of stealing. And she cannot be convicted twice.
51. Informations 2436/11 and 2438/11 are dismissed.

Result

(i) The defendant has been found guilty of two acts of Theft as a servant alleged in information 2439/11 and 2440/11.
(ii) She has been found guilty of four counts of theft contrary to section 88 Crimes Ordinance as alleged in information 2443/11, 2437/11, 2435/11 and 2442/11.
(iii) Informations 2438/11 and 2436/11 alleging theft contrary to section 88 are dismissed.
(iv) Information 2441/11 alleging false entry contrary to section 99 (b) Crimes Ordinance is dismissed.

JUSTICE VAAI