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Police v Tavui [2013] WSSC 6 (22 February 2013)

SUPREME COURT OF SAMOA

Police v Tavui [2013] WSSC 6

Case name: Police v Tavui

Citation: [2013] WSSC 6

Decision date: 22 February 2013

Parties: POLICE, Prosecution and FATIMA TAVUI female of Palisi and Sapapalii Savaii, Accused

Hearing date(s): 13 and 14 February 2013

File number(s): S1368/12

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Chief Justice Patu Falefatu M Sapolu

On appeal from:

Order:

Representation:
E Niumata for prosecution
P T Masipau for accused

Catchwords:
actus reus
mens rea

Words and phrases:

Legislation cited:
UK Criminal Law Revision Committee
Theft and Related Offences’ (1996) Cmnd., 2877
Theft Act 1968 (UK)
Crimes Amendment Act 2003 (NZ)

Cases cited:
Scott v Metropolitan Police Commissioner [1875] AC 819
R v Feely [1973] QB 530
Gruenwald v R [2004] NZCA 176,
R v Feely [1973] QB 530, 538.
R v Ghosh [1982] EWCA 2
Hayes v R [2008] NZSC 3

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO.S1368/12

BETWEEN

POLICE

Prosecution

AND

FATIMA TAVUI a female of Palisi, Apia, and Sapapalii, Savaii.

Accused

Counsel:

E Niumata for prosecution

P T Masipau for accused

Hearing: 13, 14 February 2013

Judgment: 22 February 2013

JUDGMENT OF SAPOLU CJ

The charges

1. The accused Fatima Tavui stood trial on two counts of theft as a servant under ss.85 and 86 (1) (g) of the Crimes Ordinance 1961. These counts are as follows:

(a) In information s.1443/12, the accused is charged that between the 7th and the 16th day of June 2012, whilst being a servant of Josephine Boutique’s company, she did steal 234 T-shirts valued at $25 each to the total value of $5,850, being the properties of her employer.

(b) In information s.1388/12, the accused is charged that between the 7th and the 16th day of June 2012, whilst being a servant of Josephine Boutique’s company, she did steal $290, being the property of her employer.

The evidence

2. Six witnesses were called to give evidence for the prosecution and only the accused gave evidence for the defence. The prosecution’s evidence as well as that of the accused show that the company Josephine Boutique (JB) operates three stalls at the Savalalo flea market for selling clothes and perfumes. These stalls are opened from Monday to Saturday each week. Each stall is given a number. The relevant stall in this case is stall no. 55. Employed by JB at each stall are two employees, a senior employee to supervise each stall, receive and keep the money from sales, and make out orders for more stock when needed, and a junior employee who acts as assistant.
3. The evidence also shows that one key is used to open all three of JB’s stalls. In the morning, an employee would pick up the key from JB’s owner to open the stalls. At the end of each day, the unsold stock in each stall would be taken off the tables and securely locked inside a cupboard in each stall. The stalls would then be locked and one of the senior employees would hand in the key to JB’s owner from whom the key would be picked up the next morning. The senior employee at each stall, at the end of each day, would also hand in her money from that day’s sales to JB’s owner who would count the money and record the total in a notebook.
4. Usually, at the end of each week, which would be a Saturday afternoon, at the close of business, a stocktaking of each stall is done by a different senior female employee named Sileni Sekai (Sileni) who would record the results of her stocktaking in a book called a scratch book . However, sometimes the stocktaking would not be done on Saturday but on a later day, if, for some reason, it is not possible or convenient to do the stocktaking on a particular Saturday. I note that the relevant stocktaking which was done on Saturday, 16 June 2012, was for the period from Thursday,7 June, to Saturday, 16 June 2012. This must have followed after the celebrations of our 50th Anniversary of Independence which took several days from 1 June 2012. There was no stocktaking on Saturday, 9 June 2012.
5. The evidence also shows that when more stock is needed at a stall, the senior employee at that stall would write out an order. She, but usually her assistant, would then take the order to JB’s owner who would supply the order and record the stock that has been supplied in a book.
6. At the material time, the accused was employed as JB’s senior employee at stall no. 55. As such, she was responsible for the supervision of that stall, the receiving and custody of the money from sales, and the making of orders for more stock when needed. On 7 June 2012, the accused ordered a dozen of Tan tops for her stall. The order was given to JB’s owner and the order was supplied and recorded in relation to stall 55. This was confirmed in both the oral testimonies and documentary evidence given by Mr Chan Chui, the owner of JB, and the accused. There was no dispute about this order of 7 June 2012. The selling price of each Tan top was $25.
7. However, there was dispute whether an order for another dozen of Tan tops was made by the accused on 9 June 2012 and supplied by the owner of JB the same day. The accused strongly denied that she ordered any Tan tops on 9 June 2012. She referred to the book in which she recorded the orders she made from her stall 55 for new stock. It does not show that she made any order for new stock on 9 June 2012. The accused also said in her oral testimony that there had been a few times when some of the entries in the book in which JB’s owner recorded the orders from the various stalls were found to be in error.
8. JB’s owner in his evidence in chief was not referred, or sufficiently referred, to the entry in his book relating to the order of 9 June 2012 but he was briefly referred to this particular entry during cross examination by defence counsel. His response was somewhat vague. The only other evidence given by the prosecution in relation to this particular entry came from the witness Sileni who did the stocktaking on stall 55 on 16 June. According to Sileni, there were two orders made by the accused, these were on 7 and 9 June 2012, each for a dozen of Tan tops as shown from her scratch book. The problem is that it appears from the evidence that the entries in Sileni’s scratch book were based on the entries in the book used by JB’s owner to record orders for stock from the stalls. In other words, the only real evidence given by the prosecution to show that the accused made an order for a dozen of Tan tops on 9 June 2012 is the entry in the book kept by JB’s owner. On the other hand, is the evidence of the accused in which she strongly denied that she made such an order. The accused also said that there were a few times when the owner of JB made mistakes with the entries in his book kept for orders from the stalls for new stock.
9. I have not attached weight to the evidence that there was no complaint from the accused regarding the order on 9 June for a dozen Tan-tops noted in the book kept by the owner of JB. That is because there is no evidence to show that the accused knew of that entry as the book was kept in the custody of JB’s owner. In other words, how could the accused have complained of something that she was not aware of.
10. I have given careful consideration to this conflict between the evidence of the prosecution and the evidence of the accused and have come to the conclusion that the prosecution has not proved beyond reasonable doubt that there was an order made by the accused on 9 June 2012 for a dozen of Tan tops. This is the order which is the subject of the charge in information s.1388/12.
11. Sileni who does the stocktaking of the stalls is always accompanied by another employee to assist her with the stocktaking. On Saturday afternoon, 16 June 2012, Sileni did a stocktaking of stall 55. She was accompanied by Jerome Schmidt (Jerome) another employee of JB to assist her with the stocktaking. Sileni testified that she counted most of the stock that was at stall 55 but she instructed Jerome to count the T-shirts 25 because of the large amount of those T-shirts. She later asked Jerome as to the amount of the T-shirts 25 and Jerome replied there were 538. Sileni then asked the accused whether it was the same amount and the accused confirmed the amount given by Jerome. As the count of 538 T-shirts 25 relayed by Jerome to Sileni was agreed to by the accused, Sileni said she did not need to double check. Sileni then left, after the remaining stock had been locked inside the cupboard inside the stall, and tried to reconcile the amount of the stock on hand at stall 55 and the earnings from that stall during the period from 7 to 16 June 2012. She found a cash shortage of $290 in relation to the Tan tops and a shortage of 234 T-shirts in relation to the T-shirts 25. This cash shortage of $290 represented the total value of about one dozen of Tan tops. The total value of the missing 234 T-shirts 25 was $5,850.
12. On early Monday morning, 18 June 2012, before the start of business, Sileni went back to stall 55 to double check on the T-shirts 25 by recounting them herself. She found only 304 T-shirts 25 even though the stalls were not opened on Sunday 17 June 2012 after her stocktaking on 16 June. In other words, there was a shortage of 324 T-shirts 25 from the 538 T-shirts 25 counted by Jerome on Saturday, 16 June 2012, and confirmed by the accused. Sileni also said that she then asked the accused to recount the T-shirts 25 because of the large difference in the amount that the accused and Jerome had told her on 16 June 2012 and the amount counted by Sileni on Monday morning, 18 June. However, the accused simply replied that Sileni may be right in her count. Sileni asked the accused again to recount the T-shirts 25 but again the accused said, no. Sileni then asked the prosecution witness Kalameli Faaleo aka Salilo Faaleo (Kalameli), who was the accused’s assistant at stall 55, to count the T-shirts 25 again. Kalameli’s count of 304 T- shirts agreed with that of Sileni. Sileni then reprimanded the accused. In response, the accused pleaded with Sileni to give her a chance.
13. The prosecution witness Jerome who accompanied Sileni for the stocktaking of stall 55 on 16 June confirmed in his evidence what Sileni had said about how the stocktaking was done. According to Jerome’s evidence, after Sileni had told him to count the T-shirts 25, the accused told him that there were 538 T-shirts 25. However, Jerome still counted the T-shirts. When his count came to 304, the accused told Jerome that that was all. When Jerome asked the accused as to the amount of T-shirts 25, the accused said it is 538. At that time, there were two bundles of what appeared to be children’s T-shirts lying by. Jerome did not count those bundles as they did not appear to be T-shirts for adults. Jerome further said that when Sileni asked him about the result of his count, he told her it was 538, which was the amount that the accused had told him.
14. The prosecution witness Kalameli, who was the accused’s assistant at stall 55, testified that on Thursday afternoon, 14 June 2012, the accused left their stall to go to Savaii for the matai title bestowals (saofai) of her family. Before the accused left, she brought Isaako Masoe (Isaako), who was the assistant at another of JB’s stalls, to work with Kalameli.
15. Kalameli testified that the accused, before she left for Savaii, put T-shirts 25 in a paper bag to be taken for her overseas guests who were coming to her family’s saofai. That paper bag was given by the accused to her brother who came to the stall. No money was given by the accused to Kalameli for those T-shirts. Kalameli also testified that she saw the accused taking money from their stall and used it to buy a ‘puletasi’ dress from another stall opposite their stall. The price of this puletasi was $120. She also confirmed Sileni’s evidence as to how the T-shirts 25 were recounted on 18 June and that the result of her count coincided with that of Sileni. She also said that when the shortage in T-shirts was discovered, the accused tried to appease Sileni by saying that her son would make a loan to repay the shortage.
16. Isaako was brought by the accused from another of JB’s stalls to work with Kalameli on 14 June when the accused went to Savaii for her family’s saofai, was also called as a witness by the prosecution. In his evidence, Isaako said that at the time he was working with the witness Kalameli at stall 55 he did not see Kalameli take away any stock from that stall.
17. Mr Chan Chui, the owner of JB, said in his evidence that when he was informed about the shortage of T-shirts 25 at stall 55, he called in the accused and asked her about the shortage. The accused apologised to him and said she was the cause of the shortage and requested that she be given the opportunity to repay the shortage. Mr Chan Chui agreed to give the accused that opportunity. When the accused returned the following day, Mr Chan Chui told her that he had spoken to his wife who was then in New Zealand and they have both agreed to give her the opportunity to repay the shortage. However, the accused became angry when Mr Chan Chui told her he had informed his wife in New Zealand and refused to repay the shortage.
18. The accused in her evidence strongly denied that she made an order for a dozen of Tan tops on 9 June 2012 as shown in the book in which Mr Chan Chui recorded the orders from the stalls. She said that the only order she made for a dozen of Tan tops during the period 7 to 16 June 2012 was on 7 June as shown in Mr Chan Chui’s book. I have already dealt with the conflict between the evidence of the prosecution and the evidence of the accused on this issue and decided that the prosecution has not proved beyond reasonable doubt that there was an order for a dozen of Tan tops made by the accused on 9 June 2012. I, therefore, need not deal with this part of the evidence again.
19. In relation to the alleged shortage of 234 T-shirts, the accused testified that in her position at stall 55 she had no right to be involved in a stocktaking. For that reason, she was not involved in the counting of the T-shirts 25 during the stocktaking carried out by Sileni on Saturday afternoon, 16 June. She denied that she counted the T-shirts 25. She said it was Jerome who counted the T-shirts 25. The accused also said that all three of them, Sileni, Jerome, and herself agreed that there were 538 T-shirts 25. After the stocktaking, the stock was taken down from the tables and put inside a cupboard in stall 55 where they were locked.
20. The accused also said in her evidence that the reason why she said to Sileni on the morning of 18 June to give her the chance to repay the shortage was because she was unsure, shocked, and embarrassed as people at the other stalls were looking on while Sileni was recounting the T-shirts. She also felt that no other employee was to be blamed for the shortage but herself. But she did not ask Sileni for the chance to repay the shortage because she had not taken any T-shirts 25.
21. The accused confirmed in her evidence that she did ask Mr Chan Chui for the chance to repay the shortage; her son would make a loan to repay the shortage. However, when she went home and thought that she had not taken any stock and because Mr Chan Chui’s wife had called from New Zealand and scolded her on the phone, she therefore told Mr Chan Chui the following day to take the matter to the police.
22. In relation to the money which the prosecution witness Kalameli said the accused took from stall 55 on Thursday, 14 June to buy a puletasi worth $120 from another stall before she left for Savaii, the accused denied that this happened on 14 June. She said that the pay day for employees of JB is Friday and the wages are delivered to employees in envelopes. When she received the envelope which contained her wages on Friday, 15 June, she placed the envelope where the money was kept at stall 55 as it was busy at that time. That was where she obtained her wages from to buy her puletasi but she did not use any of her employer’s money as claimed by the witness Kalameli. The accused also denied the evidence given by the witness Kalameli that she had given T-shirts to people of her family free of charge.
23. I must say that I find these parts of the accused’s evidence simply incredible. I see no reason why the prosecution witnesses Sileni, Jerome, Talameli, and Mr Chan Chui the owner of JB would come and give false or incorrect evidence against the accused about what had happened and what the accused had said. I cannot believe that what those witnesses had said in evidence were all wrong or untruthful but only the accused is telling the truth. I also reject the accused’s evidence and her attempts to explain in her favour the statements she made to the prosecution witnesses Sileni and Mr Chan Chui. I accept the evidence given by the prosecution witnesses.
24. From the evidence of the prosecution witnesses, it is clear that the only reasonable inference to draw is that the accused took the 234 T-shirts 25 which represent the shortage found by the witness Sileni. This must have been done over several days during the period from 7 to 16 June 2012.

Elements of the crime of theft

25. Before setting out the elements that need to be proved in order to establish a charge of theft or theft as a servant, I need to refer to the provisions of the Crimes Ordinance 1961 which are relevant for present purposes. Section 85 which defines theft, provides, as far as relevant,:

“(1) Theft or stealing is the act of fraudulently or dishonestly taking, or converting to the use of any person, anything capable of being stolen, with intent:

(a) To deprive the owner or any person having any property or interest therein permanently of such thing or of such property or interest;

or

(b) To deal with it in such a manner that it cannot be restored in the condition in which it was at the time of such taking or converting”.

26. Section 86 (1) then provides the various penalties for theft. Section 86(1)(a) – (f) provides the penalties for various cases of straight-out theft. Section 86(1) (g) and (h) provides the penalties for theft committed by employees or servants. These relate to theft as a servant charges like the two charges in this case. Section 86(1) (i) then provides the penalty for a theft committed under the extended definition of theft in s.88.
27. Certain points need to be noted about s.85(1) and s.86(1). In terms of s.85(1), ‘theft’ is ‘stealing’. Section 85(1) starts with the words ‘Theft or stealing’. So ‘stealing’ is not an element of the crime of ‘theft’ which the prosecution has to prove; ‘stealing’ is ‘theft’ itself. In ordinary parlance, people often use the words ‘theft’ and ‘stealing’ interchangeably to mean the same thing.
28. Secondly, it would be clear that the words ‘servant’ and ‘employee’ are not used in s.85(1). Those words are also not used in any other provision of s.85. So being a ‘servant’ or an ‘employee’ is not an element of the crime of theft. However, where a servant or employee is charged with theft alleged to have been committed in the course of his employment, then, for the purposes of the penalty provisions of s.86(1) (g) and (h), the prosecution would have to show that the accused was a servant or employee at the material time. Invariably, this comes out in the evidence called by the prosecution. Its real importance is for sentencing purposes. So in a case where an employee is charged with theft alleged to have been committed in the course of his employment, if the prosecution’s evidence proves theft but fails to establish that the accused was an employee at the material time, the accused may still be found guilty of theft but not of ‘theft as a servant’ as that expression is often used. For sentencing purposes, this would mean that s.86(1) (g) and (h) would not apply; the other provisions of s.86(1) would have to be considered.
29. I do not propose to embark on a detailed analysis of s.85.(1) That will unnecessarily prolong this judgment. However, in this case, as in the ordinary run of cases where employees are charged with theft alleged to have been committed in the course of their employment, the elements of the crime of theft that the prosecution has to prove in terms of s.85 (1) are as follows:

(a) there must be a taking by the accused;

(b) the taking was done fraudulently or dishonestly; and

(c) there was an intention on the part of the accused to deprive the owner permanently of the item that was taken.

30. On the basis of the three elements I have set out, theft is the fraudulent or dishonest taking of property with the intention of permanently depriving the owner. All three elements, namely, taking, dishonesty, and the intention to deprive the owner permanently must coincide in order to establish theft. The taking is the actus reus; dishonesty and intention to deprive the owner permanently are the mental elements which constitute the mens rea of theft.
31. In relation to the first element, ‘taking’ is the physical moving of an item, or causing an item to be moved, or arranging for someone to move an item.
32. In relation to the second element that ‘the taking was done fraudulently or dishonestly’, I am of the view that the words ‘fraudulently’ and ‘dishonestly’ mean the same thing. This was also the view of the UK Criminal Law Revision Committee in their Eight Report on ‘Theft and Related Offences’ (1996) Cmnd., 2877). In the decision of the House of Lords in Scott v Metropolitan Police Commissioner [1875] AC 819, Viscount Dilhorne stated at p.836:

“The Criminal Law Revision Committee in their Eighth Report on ‘Theft and Related Offences’ (1966) (Cmnd., 2977) in paragraph 33 expressed the view that the important element of larceny, embezzlement and fraudulent conversion was ‘undoubtedly the dishonest appropriation of another person’s property’; in paragraph 35 that the words ‘dishonestly appropriates’ meant the same as ‘fraudulently converts to his own use or benefit, or the use or benefit of any other person’, and in paragraph 39 that ‘dishonestly’ seemed to them a better word than ‘fraudulently’.

“Parliament endorsed these views in the Theft Act 1968, which by section 1 (1) defined theft as the dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it”.

33. Later on in the same speech Viscount Dilhorne went on to say:

“As I have said, words take their colour from the context in which they are used but the words ‘fraudulently’ and ‘defraud’ must ordinarily have a very similar meaning. If, as I think, and as the Criminal Law Revision Committee appears to have thought, ‘fraudulently’ means ‘dishonestly’, then ‘to defraud’ ordinarily means, in my opinion, to deprive a person dishonestly of something which is his or of something to which he is or would or might but for the perpetration of the fraud be entitled”.

34. I have also noticed that in the case law in England and New Zealand, the words ‘fraudulently’ and ‘dishonestly’ are sometimes used interchangeably to mean the same thing. For example, in the often cited case in this context of R v Feely [1973] QB 530 the English Court of Appeal in effect treated the words ‘fraudulently’ and ‘dishonestly’ as meaning the same thing. In Gruenwald v R [2004] NZCA 176, Goddard J in delivering the judgment of the New Zealand Court of Appeal, on the basis of the relevant New Zealand legislation, said at para [33]:

“Theft is the taking of somebody else’s property fraudulently, which means dishonestly, and without colour of right, with the intention of permanently depriving the owner of the item or items. This means therefore that there must be a taking of the property, a deliberate physical moving or removing ot it; that the taking must be dishonest and without a genuine, even if mistaken belief, that there was a right to take it, and that there was an intention to deprive the owner permanently of the items, not just a borrowing of the items”. (emphasis mine)

35. I have also noticed that s.1 (1) of Theft Act 1968 (UK) which defines the crime of theft uses only the word ‘dishonestly’ and does not use the word ‘fraudulently’. Likewise, s.219 of the Crimes Amendment Act 2003 (NZ) which provides for the crime of ‘theft or stealing’ uses only the word ‘dishonestly’ and does not use the word ‘fraudulently’. Perhaps, the words ‘dishonestly’ and ‘fraudulently’ convey the same basic notion of moral wrong that it would be an unnecessary repetition to use both words in the same provision.
36. The view I have taken that the words ‘fraudulently’ and ‘dishonestly’ in the context of s.85 of our Crimes Ordinance 1961 should be taken to mean the same thing is also open as a matter of simple statutory interpretation. Section 85(1) starts with the words “Theft or stealing is the act of fraudulently or dishonestly taking...” No one can seriously contend that the words ‘Theft or stealing’ mean that ‘theft’ has a different meaning from ‘stealing’ because they are used separately and are joined by the conjunction ‘or’. That is because ‘theft’ is ‘stealing’ and vice versa. Likewise, when it comes to ‘fraudulently or dishonestly’. The words ‘fraudulently’ and ‘dishonestly’ are joined by the conjunction ‘or’ but they convey the same basic notion of moral wrong. An act that is fraudulent is also a dishonest act. This will also provide for consistency in the interpretation of the words ‘Theft or stealing’ and the words ‘fraudulently or dishonestly’.
37. The main problem in this area of the law relates to what test should be applied for determining whether a ‘taking’ was dishonest. In this regard, there is no unanimity in judicial opinions in the developed common law jurisdictions. The position in England is different from that in Australia while in New Zealand the Courts have not taken up a firm position on the debate regarding this issue.
38. The test which the Samoan Courts had often applied for determining whether a taking in a theft case was dishonest is ‘the current standards of ordinary decent people’ as stated by the English Court of Appeal in R v Feely [1973] QB 530, 538. This test required no definition of the word ‘dishonestly’ from the presiding Judge. It is for the jury (or assessors as we have it in Samoa) to decide whether an act with which an accused is charged was dishonestly done having regard to ‘the standards of ordinary decent people’. In R v Feely [1973] QB 530, 537 – 538, Lawton LJ who delivered the judgment of the Court said:

“We do not agree that Judges should define what ‘dishonestly’ means. This word is in common use... Jurors, when deciding whether an appropriation was dishonest can be reasonably expected to, and should, apply the current standards of ordinary decent people. In their own lives they have to decide what is and what is not dishonest. We can see no reason why, when in a jury box, they should require the help of a Judge to tell them what amounts to dishonesty”. (emphasis mine).

39. As nearly all the theft cases that come before the Samoan Courts are tried before a Judge sitting alone, the same test of ‘the current standards of ordinary decent people’ has been applied by the Judges themselves to the facts of the case. This is usually seen as an objective test. So far, we have had no problems with the application of this test in determining whether a taking was dishonest.
40. The test laid down in R v Feely was, however, altered in R v Ghosh [1982] EWCA 2 where Lord Chief Justice Lane in delivering the decision of the English Court of Criminal Appeal said:

“In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.

“If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did”.

41. The learned authors of Archbold Criminal Pleadings, Evidence and Practice 2006 suggest at 21-26 that:

“There is no need to give a Ghosh – based direction unless the defendant has raised the issue that he did not know that anybody would regard what he did as dishonest... A Ghosh direction need only be given where the defendant might have believed that what he was alleged to have done was in accordance with the ordinary person’s idea of honesty”.

42. The test laid down in R v Ghosh [1982] EWCA 2 involves a two – stage process. The first stage of this process contains an objective test and the second stage contains a subjective test. As I understand the suggestion by the learned authors of Archbold Criminal Pleading, Evidence and Practice 2006, 21-26, a full Ghosh – based direction needs to be given where an accused has raised the issue that he did not know that any person would regard what he did as dishonest. However, if an accused does not raise the issue, then it would be enough to give a direction based on the first limb of the two-stage process laid down in R v Ghosh. The first limb of the Ghosh test resembles ‘the current standards of ordinary decent people’ laid down in R v Feely [1973] QB 530, 537-538. But it should be noted that while R v Feely uses the expression ‘ordinary decent people’, R v Ghosh speaks of ‘reasonable and honest people’.
43. In Peters v R [1998] HCA 7, the High Court of Australia was very critical of the test in R v Ghosh and essentially rejected the Ghosh test. Toohey and Gaudson JJ who delivered the leading judgment stated at para 18:

“In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial Judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest. Necessarily, the test to be applied in deciding whether the act done is properly characterised as dishonest will differ depending on whether the question is whether it was dishonest according to ordinary notions or dishonest in some special sense. If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people. However, if ‘dishonest’ is used in some special sense in legislation creating an offence, it will ordinarily be necessary for the jury to be told what is or, perhaps, more usually, what is not meant by that word. Certainly, it will be necessary for the jury to be instructed as to that special meaning if there is an issue whether the act in question is properly characterised as dishonest”.

44. In New Zealand, the Supreme Court in Hayes v R [2008] NZSC 3 at para [41] alluded to the different approaches in England, Australia, and Canada to questions of dishonesty but did not find it necessary to determine what should be the approach in New Zealand for determining whether an act is dishonest. Given this state of affairs in the developed common law jurisdictions, I have to make a choice as to the test of dishonesty to be applied in this particular case. In my respectful view, the test laid down in R v Ghosh [1982] EWCA 2 is to be preferred for the purpose of determining whether the taking in this case was done dishonestly in terms of s.85 (1) of our Crimes Ordinance 1961. It is a clear and straightforward test. The first limb of the test would apply in the general run of theft cases. The second limb would only be applied if an accused has raised the issue that he did not know that any person would regard what he did as dishonest. If the accused does not raise such an issue, then the second limb of the test would not apply. Only the first limb of the test, which is similar to the test in R v Feely, should then be applied. Maybe the Samoan Courts, in an appropriate future case, would have to reconsider what should be the proper test for determining whether an act was dishonestly done in order for it to amount to theft. For present purposes, I am content to apply the Ghosh approach. Also see Fareed v Police [2012] WSSC 48 and Police v Schuster [1996] WSSC 22 where this Court applied the Ghosh test.
45. In relation to the third element of theft which is the intention to deprive the owner permanently of property, this is one of the mental elements required to be established in order to prove theft. The other mental element is dishonesty. Both mental elements must exist at the time of the taking.
46. The expression ‘intention permanently to deprive the owner’ of property or other similar expression, is not defined in our Crimes Ordinance 1961. However, there is no doubt in my mind that if someone dishonestly takes property which belongs to another and keeps it as his own or disposes of it as his own, not to be returned to its owner, that person has the intention permanently to deprive the owner.

Discussion

47. In relation to the charge of theft contained in information s.1443/12, I am satisfied beyond reasonable doubt from the evidence that the accused, whilst an employee of JB, did take 234 T-shirts 25 of the total value of $5,850, which belong to her employer. The first element of the charge which is that there must be a taking has therefore been proved. In respect of the second element of the charge, namely, that the taking was done dishonestly, I am also satisfied beyond reasonable doubt that in the circumstances, the taking by the accused of the T-shirts without the knowledge or authority of her employer was dishonest. The second element of the charge has therefore also been proved. With regard to the third element of the charge, namely, that the accused must have had the intention to deprive the owner (her employer) permanently of the items she took, I am satisfied beyond reasonable doubt that in the circumstances, the accused had that intention when she took the T-shirts. Even after the accused was confronted by her employer about the shortage, she refused to repay after she initially agreed to repay. The third element of the charge has therefore also been proved. It follows that the prosecution has established the charge of theft in information s.1443/12 against the accused.

Conclusions

48. The accused is found guilty of the charge of theft of 234 T-shirts 25 contained in information s.1443/12 which has been proved by the prosecution beyond reasonable doubt.
49. The accused is found not guilty of the charge of theft of $290 contained in information s.1388/12 which has not been proved by the prosecution beyond reasonable doubt. That charge is therefore dismissed.
50. This matter is adjourned to Monday, 11 March 2013 at 9:15am for a probation report and sentencing. Bail to continue.
    

CHIEF JUSTICE

• Solicitor
• Attorney-General’s Office, Apia, for prosecution
• Tamati, Vaai Hoglund Law Firm for accused