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Police v Aperila [2013] WSSC 128 (9 September 2013)

SUPREME COURT OF SAMOA

Police v Aperila [2013] WSSC 128

Case name: Police v Aperila

Citation: [2013] WSSC 128

Decision date: 09 September 2013

Parties: POLICE v ATAPANA APERILA male Talimatau and Tufutafoe Savaii.

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:

Representation:
R Titi for prosecution
T K Enari for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

THE POLICE

Prosecution
AND
ATAPANA APERILA male Talimatau and Tufutafoe Savaii.
Defendant

Counsel: R Titi for prosecution
T K Enari for defendant
Judgment: 09 September 2013

ORAL JUDGMENT OF NELSON J

1. Following the courts rejection of the defendants no case to answer application as per its ruling of 22 August 2013 the defendant elected to give evidence. His evidence served to dispel any doubts I may have had in this matter.
2. Defendants evidence was that from 2001 to 2006 he worked on the Chan Mow delivery truck. In 2007 he was promoted to travelling salesman whose job it was to regularly visit customers and promote company goods, see to their needs and also take orders. Such orders he would relay to the company and they would send the delivery truck around with the ordered goods. He said however that on the day in question the delivery truck supervisor Utuma was ill. He was instructed by his superior to take his place. This explains the notation at the bottom of the stock tally sheet stating that the truck was Utumas delivery truck.
3. The defendant admitted taking the KK Mart orders in this matter. But said that after he had written out the necessary receipt the KK Mart Manager changed their order. What he did was to change the original yellow copy of the receipt. The yellow copy being the one that is returned at the end of the day to the company. But that he overlooked changing the blue copy of the receipt which is the copy given to the customer. Thus for example Exhibit “P-4” and Exhibit “P-4A” have alterations thereto.
4. But the alterations in the two receipts do not match up. They are radically different to one another. The defendant marked the customers receipt copy “paid” and that copy shows a larger amount of money was paid to the defendant than the yellow copy of the receipt. The difference between the two receipts is what he has essentially been charged with stealing.
5. Had the customers blue copy not been recovered the companys records would therefore have shown that the defendant was paid the lesser amount shown on the yellow copy. The defendant gave a similar explanation in relation to “P-5” and “P-5A”. But with “P-5” and “P-5A” he marked both copies paid. Even though they showed different amounts. The customers blue copy showing a larger amount than the companys yellow copy, again showing that the customer had paid him a larger amount.
6. That is also the situation with the receipts marked “P-6” and “P-6A”. And his explanations are simply not credible coming from an experienced employee of the company. Furthermore as pointed out to his counsel these matters were not put in cross examination to the shop manager of KK Mart when she gave her evidence. No doubt because counsel was then relying on the illusory defence of non-identification.
7. It is also difficult to accept the defendants explanation because it appears according to his testimony that he also corrected the copy of the receipts given to the delivery boys. Those receipts were not produced before the court. Therefore according to the defendants testimony he corrected two copies of the same receipt but not the third copy the one given to the customer.
8. The more plausible and likely explanation is that on a day when Utuma was sick the defendant saw his chance to pocket a little extra cash and he took it. Not thinking his gambit would be detected by the ever vigilant Chan Mow Credit controller who spotted an inconsistency and retrieved the customers copy of the receipts. This conclusion is also consistent with the defendants repayment of the stolen funds when his activities were discovered.
9. I do not accept there is any significance in the argument from defendants counsel about an attempt to introduce into evidence a letter from the Chan Mow credit controller to the police. Such evidence should have been canvassed with the credit controller when she was on the witness stand. I have difficulties seeing the relevance of such a letter in any event to the issues the court needs to determine. The suggestion also that the prosecution should have called certain other witnesses is also of little value to the defendant who could have subpoenaed such evidence if it was considered useful or indeed crucial to the defendants defence.
10. As to the point about identification the court accepts the manager of KK Mart was unable to identify the defendant. But the defendant as soon as he placed himself voluntarily in the witness box and admitted he was the supervisor of the truck on the day in question in relation to the customer in question and the transactions identified himself as the recipient of the monies from KK Mart. That evidence nullifies any merit the submission may have.
11. The prosecution evidence satisfies the court beyond reasonable doubt of your criminal misconduct in this matter. I find all six charges proven beyond reasonable doubt. But as I do not consider this offending to be at the high end scale of theft as a servant I propose to grant you bail pending your sentence. Conditions of bail will be as follows: surrender any travel documents to the Registrar. Secondly, report to the police every Thursday awaiting sentence.
12. O le aso 7 o Oketopa lea ua tolopo iai lau mataupu Atapana. E tatau ona e oo i le ofisa faanofo vaavaaia e fai mai se lipoti mai le latou ofisa mo lau mataupu. Aua le faatamala i le lipoti lena. E taua tele le lipoti lena mo oe.
    

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JUSTICE NELSON