SUPREME COURT OF SAMOA
Police v Saunoa [2012] WSSC 77

Case name: Police v Saunoa
Citation: [2012] WSSC 77
Decision date: 16 March 2012
Parties: 
Police v Uili Saunoa male of Nofoalii and Palisi and Amani Mose male of Lelepa and Faleula and Amoa Vaaga male of Taufusi and Fasitoo-uta and Tipasa Faalafua male of Se’ese’e.
Hearing date(s): 31 January 2012 and 08 February 2012
File number(s): 
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): Nelson J
On appeal from:
Order:
Representation: 
Ms L Taimalelagi for prosecution
Defendants unrepresented
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:
POLICE
Informant

A ND:
UILI SAUNOA, male of Nofoalii and Palisi.
First Defendant

A ND:
AMANI MOSE, male of Lelepa and Faleula.
Second Defendant

AND:
AMOA VAAGA, male of Taufusi and Fasitoo-uta.
Third Defendant

AND:
TIPASA FAALAFUA, male of Se’ese’e.
Fourth Defendant

Counsels:	Ms L Taimalelagi for prosecution
Defendants unrepresented
Hearing:	31 January 2012 & 08 February 2012
Submissions:21 February 2012
Decision:	16 March 2012

ORAL DECISION OF NELSON J

[1]	 The four defendants in this matter collectively face four charges of theft of as a servant.  The first charge S510/11 alleges that on 02 May 2011 the defendants stole various goods from their employer Chan Mow Wholesale Company Limited.  Various goods to a total value of $683.35.  The second charge is S508/11 alleging that on the 04 May 2011 they stole 4 bags of flour to a total value of $218.50 the properties of their employer the said Chan Mow Wholesale.  The third charge S509/11 alleges that on the 05 May 2011 they stole various goods from their employer Chan Mow Wholesale to a total value of $1,306.00.  Fourth and final charge S507/11 alleging that on the 06 May 2011 they again stole various goods from their employer.  The total value of these goods being $821.05.   To these charges the defendants have pleaded not guilty.  There is a fifth charge S413/11 which alleges that on the 05 May 2011 the defendant stole 6 cartons of chicken legs to a total value of $363.00 from their employer.  But this charge is against only the first and second defendant and they have pleaded guilty to it.  
[2]	At the trial of this matter the second defendant Amani Mose did not appear and a warrant has been issued for his arrest.  Trial proceeded as against the other three defendants.  The evidence established that they were all employed by Chan Mow Wholesale Company Limited, a local wholesale and supermarket company.  The first and second defendants Uili and Amani were employed as labourers on the grocery truck responsible for selling goods from the wholesale to various stores around the country.  The third defendant Amoa was a supervisor on the delivery truck and the fourth defendant Tipasa was the driver thereof.  
[3]	The prosecution alleges that on the dates in the charges the defendants sold the goods in question to various outlets and retained the sale proceeds committing the crime of theft as a servant.  Prosecution evidence established that the labourers were responsible for loading the truck, physically handing over the goods to customers and also for checking and re-stocking the truck.  The supervisor was responsible for supervising the deliveries and his job was to retain the sale money, issue receipts for the goods, keep the receipt book.  He was the only one authorized to issue receipts.  At the end of each day the receipts were all handed over to the accounts division who reconciled and balanced up the days takings with the receipts.  These charges arise out of shortages in respect of the deliveries of the days canvassed by the charges.  
[4]	I am satisfied on the evidence that I have heard that on the 02nd, 04th and 05th of May 2011 the defendants operated the truck which was carrying out the West Coast Road deliveries for their wholesale company employer.  And that on the 02nd  and 05th of May shortages occurred in the deliveries.  I am also satisfied from the documentary and other evidence adduced before the court that the truck was properly loaded with the goods in question and that these were all checked and secured by the witness Kidda Chan Tane who supervises the loading and unloading of delivery trucks for the company.  And that the first, second and third defendants were fully aware of the shortages and what was occurring.  Further that they were unable to provide any satisfactory or reasonable explanation to the company about the shortages. 
[5]	The irresistible inference to be drawn is that they were involved in stealing the relevant goods perhaps intending to pay the “shortage” back or perhaps to later somehow “replace” the stolen goods.   But they were caught out by an on the spot investigation of their activities by the ever alert Lenora Adams who is the companys financial controller.  She noticed a substantial shortage on the 05 May 2011 delivery and upon questioning the defendants decided that their answers were unsatisfactory and that an investigation needed to be carried out.
[6]	Evidence against the first, second and third defendant is sufficient but that against the fourth defendant driver is thin and in my view insufficient to tie him into the missing stock and alleged thefts.  I also note Tipasa was not interviewed by Adams who probably had no cause to suspect he was involved.  There is nothing to show he was aware of the full contents of the truck or how the goods went missing. He was a driver and nothing more.  There is also no evidence he participated in or assisted in unloading of the goods or collection of any sale monies.  Those were the job responsibilities of other members of the truck. The fact that he may have paid for some of the missing goods for example the 6 cartons of chicken legs which are the subject of information S413/11 is not evidence that he is also part  of or party to these thefts.  Because he could have made that payment out of sense of obligation or responsibility.  There is insufficient proof beyond reasonable doubt as to his guilt and in respect of all charges against him I record a finding of not guilty.  
[7]	In respect of the two remaining defendants who have appeared defendants one and three I am satisfied beyond reasonable doubt in relation to the allegations that on the 02nd, 04th and 05th of May they were on the truck in question.  And that on the 02nd and 05th of May they stole the goods as alleged.  But I am not satisfied in respect of the 04th May allegation of theft of the four bags of flour. The documentary evidence is ambiguous in respect of those bags on the 04th of May delivery.  In particular Exhibit “P-6” for the prosecution which contains the relevant documents for that delivery show this to be a re-supply from the depot rather than a part of the original load in the truck.  I find therefore information S510/11 of the 02nd of May proven as is information S509/11 relating to the 05th of May.  
[8]	I do not accept the first defendant Uilis argument that on the 05th of May he was not on the truck because he was being interviewed by the police in relation to this matter.  Because the document Exhibit “P-7” for the prosecution shows he was part of the crew of the 05th of May and Lenoras evidence was this was the day of the shortage that launched her investigation.  But I do accept Uilis argument in respect of the 06th of May allegation because Exhibit “P-8” for the prosecution shows his name crossed out of the crew sheet for that day.  And Lenoras evidence was that the first and second defendants were the two initially referred to the police for investigation.  I am satisfied therefore that he was not at work on the 06th of May he was being interviewed by the police that day and the charge in respect of him in relation to the 06th of May is not proven.  
[9]	I am satisfied however that his supervisor the third defendant Amoa was at work that day and was part of the crew that day as confirmed by Exhibit “P-8” for the prosecution.  The charge against him for that day is proven.  
[10]	The end result of all these gentlemen is as follows; in respect of the first defendant Uili Saunoa charge S413/11 of the six carton of chicken legs that you have pleaded guilty that charge has been confirmed by your guilty plea.  He is also found guilty on charges relating to the 02nd and 05th of May, the 02nd May charge being S510/11 and the 05th being S509/11.  The other two charges against him are dismissed.
[11]	In respect of the third defendant Amoa Vaaga, he is found guilty of the thefts on the 02nd of May S510/11, 05th of May S509/11 and 06th of May S507/11.  The one remaining charge against him is dismissed.  
[12]	In respect of the fourth defendant Tipasa, all charges against him for the reasons given are dismissed.  
[13]	Uili ma Amoa e mana’omia se lipoti a le ofisa faanofo vaavaaia mo le lua mataupu.  E tatau ona lua o e faafesootai le ofisa i le asō. Logo iai le aso lea laa tolopō iai le lua mataupu, logo iai le faaiuga ma le tulaga lea ua.  E lau le iuga o le lua mataupu i le aso 09 o Aperila.  O tulaga lena e tatala ai oulua i tua o le a faaauau pea a’o le aso 09 Aperila e lau ai le faaiuga o le mataupu lenei, ua lua malamalama? (defendants indicated they understood).  

JUSTICE NELSON