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Police v Galuega [2020] WSSC 94 (19 October 2020)

THE SUPREME COURT OF SAMOA
POLICE v GALUEGA [2020] WSSC 94

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

MARY ELLEN NERISSA GALEUGA female of Moataa
Accused

Counsel:
A Matalasi for Prosecution
I Sapolu for the accused

Decision: 19 October 2020

RESERVED DECISION OF JUSTICE TUALA-WARREN

The Charge

1. The accused pleaded not guilty to one charge of theft as a servant pursuant to sections 161 and 165(e) of the Crimes Act 2013.
2. The Prosecution alleges that at Apia on 6 April 2018, the accused being an employee of Ministry of Prime Minister and Cabinet (‘MPMC’), stole SAT$15,435.00, in cash, the property of her employer.
3. At trial, the Prosecution called five witnesses. The Accused chose to give evidence.
4. This is my reserved decision.

Relevant Law

5. Section 161 defines theft or stealing as the dishonest taking of property with intent to deprive any owner permanently of the property. If the property stolen is taken by a clerk or servant, in effect, an employee, and the property belongs to his or her employer, that offence is generally referred to as ‘theft as a servant’. The relevant parts are as follows;

Section 161. Theft or stealing – (1) Theft or stealing is the act of:

(a) Dishonestly taking any property with intent to deprive any owner permanently of that property or of any interest in that property; or ...

(3) For tangible property, theft is committed by a taking when the offender moves the property or causes it to be moved.

Section 165. Punishment of theft – A person who is convicted of theft is liable as follows:

(e) if any property stolen by a clerk or servant which is owned by his or her employer or is in the possession of his or her employer, to imprisonment for a term not exceeding 10 years;”

6. Therefore the elements of the offence which the prosecution must prove beyond reasonable doubt are:

(a) The accused dishonestly took property ;

(b) Belonging to his or her employer;

(c) Without the employer’s consent;

(d) With Intention to permanently deprive the employer of that property.

7. The onus is on the Prosecution to prove an accused’s guilt through establishing each element of the offence beyond reasonable doubt.

The Evidence

8. There is no argument that the accused went on the 6 April 2018 to do banking for MPMC at the ANZ bank. There is no doubt too that she had on her two sets of banking. One contained USD$60.00 and the other contained cash of SAT$15,435.00 and 5 cheques totalling SAT$1700.00. There is no doubt that she did not bank the SAT cash and cheques, and only banked the USD$60.00. Gaosa Tuainafo who is the Asset and Reconciliation officer for the Ministry of Finance confirms that she provided Sanita Tusani (senior accounting officer for MPMC) with a statement to confirm MPMC banking and on 6 April 2018, only USD$60.00 was banked.
9. The accused is not charged in relation to the cheques as MPMC was able to request stop notices on the cheques. The cash of SAT$15,435.00 in the second set of banking is in issue here.
10. According to Sanita Tusani who was at the time a senior accounting officer for MPMC, she prepared the banking after the cashier Matano Manu Fuimaono had handed it to her on Friday 6 April 2018. There were two sets of banking to be done that day. One was USD$60.00 in a separate bank plastic bag and the other was SAT$15,435.00 and cheques of $1700.00 in another banking plastic bag. She filled out the lodgement forms, put both sets of banking in a bag used for banking which she describes as a black small bag with a zip, and gave to the accused to take and bank. The two sets of banking were in the banking bag. When the accused returned with the banking bag, Sanita says there was only one receipt in the bag and that was for the USD$60.00. She asked the accused for the receipt for the other set of banking. She says the accused called a person by the name of James at ANZ asking him to check his desk for the receipt. The accused then told Sanita that she would pick the receipt up from James the following Monday. Sanita says that the following Monday, she reminded the accused about the receipt before the accused went to do the banking for that day. When the accused returned she told Sanita that James was on leave but she had made enquiries with the bank supervisor. Sanita says at the end of that week, the accused told her that it was in a brown envelope on her desk. Sanita says there was nothing on her desk. She says she kept following up with the accused. The accused did not seem unsettled, she kept saying that she has followed by with the bank supervisor. The accused was then rushed to hospital. Sanita then heard from Asenati and Oliana that the accused had told them that she dropped the banking. Up to that point, Sanita says she had no suspicions. The accused had always done the banking and this had never happened before.
    11. Matano Manua Fuimaono confirmed the amounts for banking as the cashier for Immigration.
    12. James Sia was working as a teller at ANZ in April 2018. He confirms that the accused only brought in USD$60.00 to bank and confirms the receipt for 6 April 2018 (“P6”).
    13. Asenati Semu is the subeditor for the Savali newspaper which is under MPMC. She worked with the accused in Corporate Services. She took the accused to the hospital in an ambulance when she got sick suddenly at work. She says that at hospital the accused cried and told her “popole tupe a le ofisa la ua leiloa”.
    14. The accused gave evidence. She has worked at MPMC for fifteen years. She says that on the day in question she had the banking in the amounts as specified by Sanita and Matano. At about 3.30pm, she left the banking bag on her desk and printed out her payslip and went to collect it from the printer. She says she had printed her payslip as she had wanted to make a loan. She then walked downstairs and had two cigarettes underneath the government building before she walked over to ANZ. She says that when she was at standing at the lights about to cross the street to ANZ, a lady called out to her “vaai ou pepa ga e toulu”. She says she walked back and forth from the lights to the government building four times looking for the money but she could not find it. Then she went and banked the USD. She says that she was rushing that day as the bank closes at 4pm. She says she felt empty and lied to Sanita about what happened because this is the first time that this has happened and she was trying to recover the money from her relatives overseas. Then due to the stress on 27 April 2018, she blacked out and woke up at hospital. She says she told Asenati that she had lost the banking. She says she has never used a cent of that money. She does not know where she lost the money. Under cross examination, she was shown the receipt from the bank ( ‘P6’) which showed that she had banked the USD at 3.30 pm on 6 April 2018. She says that the office clock said 3.30pm when she left the office. She admits to lying to Sanita but denies she is a thief.

Discussion

15. It must be proved beyond reasonable doubt that the accused dishonestly took $15, 435.00, which belonged to MPMC, without the consent of MPMC while she worked for MPMC, with the intention to permanently deprive MPMC of that money.
16. There is no question that the accused worked for MPMC at the material time being 6 April 2018. There is also no question that the missing money belonged to MPMC. The issue which must be determined on the facts is whether the accused dishonestly took the money with the intention to deprive MPMC of that money.
17. This therefore requires me to make findings of facts on the evidence which has been heard.
18. The intention of a person can be inferred by their words and their actions. In this case I find that the intention of the accused can be inferred from the following facts which I find have been established to my satisfaction. She chose to lie to Sanita about the missing money from 6 April to around 27 April 2018. She blamed the bank teller for not giving her the receipt, lied that she had made enquiries with the bank supervisor, and then lied to Sanita later that it was in a brown envelope on Sanita’s desk, which it was not. The litany of lies told by the accused continued for about three weeks. Sanita gave evidence that she continued to follow up for the receipt for the missing money with the accused and the accused kept making excuses. I accept that this allows me to make an inference that the accused was dishonest, in that she told lies for the purpose of concealing that the money was gone, until she fell sick.
19. I do not accept what the accused said happened at the lights opposite ANZ. She says a lady called out to her that her papers were falling (toulu). She gave no evidence as to what other papers were in the banking bag. Sanita said that the banking bag had two sets of banking only. If indeed such a thing had happened, the lady would have seen the banking fall out of the bag where the accused was standing at the lights and the accused would have been able to recover the fallen money.

20. Her evidence also does not correspond with the time she says she left the office. She says she left when the office clock showed 3.30pm. She then smoked two cigarettes under the government building and was rushing to the bank as it closes at 4pm. She walked back and forth four times according to her evidence from the lights opposite ANZ to the government building. The receipt for the banking of the USD says 3.30pm. I accept the time on the bank receipt. If she was at the bank at 3.30pm, she could not have been rushing to the bank which closes at 4pm. This throws doubt on her evidence.

21. Another fact which I find is that she was getting her payslip from the printer before going to the bank because she said she wanted to go get a loan. That is evidence from her which I find establishes that she needed money that day. I find that this provides her with a motive to take the money.
22. If the accused had reported the missing money immediately and did not engage in the deceitful behaviour for about three weeks, the inference that she was dishonest and trying to cover up for the missing money would have been difficult to arrive at. However, the behaviour of the accused from 6 to 27 April 2018, makes it difficult to arrive at any other reasonable inference than that she dishonestly took the money with the intention to permanently deprive MPMC of that money. Her evidence is not a plausible narrative of what happened particularly in light of her actions to conceal the missing money afterwards.
23. The accused was visibly distraught whilst giving evidence. While there is sympathy for her, her evidence is not credible nor is it reliable. Viewed in totality, there is no doubt that the money went missing on her watch, a fact that she tried to conceal for a period of about three weeks. I find that the facts in totality allow me to make an inference that she dishonestly took the missing money with the intention to permanently deprive MPMC of that money.

Result

24. I find that it has been proven beyond reasonable doubt the accused dishonestly took SAT$15,435 in cash. This money belonged to MPMC, her employer. The money was taken without the consent of MPMC. She intended to permanently deprive MPMC of the money.
25. The accused will be sentenced on 20 November 2020 at 12.30. A pre-sentence report is ordered.

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN