State v Petero [1995] FJHC 66; Hac0025s.1993s (4 April 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.HAC0025 OF 1993

STATE

v

SUE PETERO

Counsel: C. Hook for State
T. F for Accused

Hearing: 7,8,9,10,11,14,15,16,17,18,21,22,23,24,25,30 November 1994; 1,5,6,7,8,12 December 1994; 9,10 February 1995; 9,21,22,27,28,29,30 March 1995; 4,5,6 April 1995.
Summing Up: 6 April 1995

SUMMING UP OF PAIN J.

Gentlemen Assessors, it is now my duty to sum up this case to you. You will then be required to deliberate together and each of you must give a separate opinion whether the accused is guilty or not guilty of the charge. I will then pronounce the verdict or the judgment of the court and your opinion will carry great weight with me in deciding that judgment.

In coming to your opinion, you must apply the law as I explain it to you. It is my duty to regulate the procedure of the trial and direct you on the law. Those directions on the law must be followed by you.

However, I do not decide the facts. That is for you. As I speak to you, you may feel that I have formed some view on a particular question of fact. If you disagree with the version of facts that I appear to be expressing, then please feel completely free to disregard my opinion. All matters of facts are for you and you alone. It is for you to decide the credibility of the witnesses, what parts of their evidence you accept as true and what parts you reject. You decide what facts are proved and what inferences you can properly draw from those facts. You then apply the law as I explain it to you and decide whether your opinion is guilty or not guilty.

You must come to that decision solely upon the evidence you have heard from the witnesses which includes all the exhibits that have been produced. If you have previously heard anything about this case or the people involved through the media or some other source, you must ignore that completely. The law requires that the accused is to be judged solely upon the evidence sworn to in this court. In considering that evidence you are expected to apply your common sense and everyday knowledge of human nature and people. You must please put aside any feelings of prejudice, or sympathy which may occur to you one way or the other and arrive at your verdict calmly and dispassionately.

The charge against the accused is set out in the information that you each have a copy of. This charge is brought by the State and the onus of proving it rests on the State from beginning to end. There is no onus on the accused at any stage to prove her innocence or to prove anything else. She does not need to give evidence. The law is, that the State must prove the essential ingredients of the charge beyond reasonable doubt before there can be a finding of guilty. That is the standard of proof I mean when I say throughout this summing up that the State must prove some matter. Proof beyond reasonable doubt. That is a classical phrase that you will have heard many times. Those words are clear and will be readily understood by you. They mean just what they say. A reasonable doubt is a doubt which you find is reasonable in the circumstances of this case. If after a full consideration of the evidence and bearing in mind the directions I give to you, you find the charge proved beyond reasonable doubt, your opinion must be guilty. On the other hand if you are left with a reasonable doubt, your opinion must be not guilty.

I must first explain to you the legal elements of the charge against the accused which is known under our law as embezzlement. That is an old fashioned word that is used to describe a situation where an employee receives money intended for his or her employer and instead of handing it on diverts all or part of it for his or her own use. Applied to this case the legal ingredients that must be proved by the State are:

1. That the accused was employed by Consort Shipping Limited.
   
2. That she was employed to receive into her control, money paid by passengers for boat fares which was intended for Consort Shipping. It was not given for her to use for her own purposes. She was required to hand it on to her employer.
   
3. That she received money in this way in the course of her employment and embezzled some of this money over the period from the kneed of January 1992 to the Th [sic] of October, 1992. Instead of handing it on to Consort Shipping, she converted $85,331.91 of it to her own use. That conversion would occur when instead of handing money onto her employer, she did something else with it. For the crime of embezzlement it is not necessary for the prosecution to prove what the accused did with the money or that she personally benefited from it. It is sufficient to prove that she converted the money to her own use, not to her own personal benefit. This means proof that the accused having received the money, instead of taking it to the head office of Consort Shipping, diverted it to some other purpose of her own choosing. That would be so whether she put it in her bank account, spent it on holidays, gave it to shopkeepers for the purchase of goods or gave it to somebody else for his or her own personal use. Converting the money to her own use includes conversion for the benefit of others.
   
4. The final ingredient to be proved is that in converting the money to her own use, the accused acted fraudulently. To act fraudulently a person must act deliberately and with knowledge that he or she is acting in breach of his or her legal obligation. It must be proved that the person acted dishonestly. So in this case it must be proved that the accused in not handing the money onto Consort Shipping but putting it to her own use, deliberately did this in breach of her legal obligation and was acting dishonestly.
   

Those are the legal ingredients of the crime of embezzlement that must be proved in this case. To summarise they are:

1. That the accused was employed by Consort Shipping.
   
2. That her duties were to receive into her control money paid for fares and hand it on to her employer.
   
3. That she received money in this way and instead of handing it on to Consort Shipping she converted $85,333.91 of it to her own use.
   
4. That she did this fraudulently.
   

In view of the very protracted nature of this trial, a very considerable time has elapsed since some of the witnesses gave evidence. It is therefore necessary for me to remind you of the evidence that has been given. In doing this it is impossible to cover everything that every witness said. I will remind you of the salient aspects of their evidence. However, you must bear in mind all the evidence that has been given. If I overlook a particular matter, it does not mean that it is unimportant. You must consider and evaluate all the evidence.

The first witness was Justin Smith, the Managing Director of Consort Shipping Line. He gave details of the procedure for issuing tickets and accounting to head office for fares. That process will now be very familiar to you and I don't propose to repeat it at any length. You will remember that there are ticket books and there are four copies of every ticket. The voyage and passenger copy go to the passenger.

The accounting copy should then be attached to a waybill which contains particulars of that ticket and should be forwarded to head office with the cash and the fourth copy the office copy remains in the book. Mr. Smith said that the Defendant was the Senior Ticketing Officer at the Ticketing office in Dominion Arcade. In cross examination he said that she was in charge of doing the daily waybills and submissions. He said that on the 13th October, 1992 there was a problem with a ticket refund. He went to the ticket office with two other officers of the company. They asked for the ticket books and he said they were given about five. He said a search was made and about 26 books were found. You may recall that he said, "I was horrified", because the practice is only to have three or at the most four books at one time. He then gave evidence of the first meeting with the accused which took place at his office immediately after they had been to the ticketing office. He said the Defendant was erratic and inconsistent in her answers. She admitted that she had not followed procedure but said she did not take money. She said that she gave it all to Joe Fotu. Mr. Fotu was called into the office and he said that he had received $2-3,000 over a period of two years.

Both of them were then sent away until the next day and asked to think the matter over. Mr. Smith gave evidence of a second meeting which he said was the following day. He said that the Defendant provided a list of payments made to Mr. Fotu. That list has been produced as Exhibit 1. You will be aware that it covers eight months for a period from January to October but has no entries for March. It was not totalled an evidence but you can check it for yourself I am sure and it adds up to something over $19,000.00. Mr. Smith said that the Defendant admitted taking ticket books, issuing tickets, taking money and giving it to Mr. Fotu. She also said that some money had been given to a Secretary Senikau, and in cross-examination he said that the Defendant stated that it was not a large sum and she said the figure was only $200 - $300. She also said at this meeting that Richard Narayan was not involved and he did not know what has happened. On that day Mr. Fotu also gave his list and that has been produced as Exhibit 2 and you will be aware that that shows a total of $2,165 that Mr. Fotu said he received from the Defendant. Mr. Smith then gave evidence of a third meeting which he thought was on the following Monday. He said that others from the Company were asked to leave. At this stage he was fully aware of the extent of the loss and he told the accused that she must have taken some of the money. She said she had taken money, given some to Jo Fotu and kept most of it herself. He asked her was it in the range of $20,000 and she said it was more. He said have you taken around $40,000 and again she said it was more. He then put $60,000 and she said not that much definitely less. He then said $50,000 and she replied it is somewhere about that. Mr. Smith said that the accused also told him that Jo Fotu had taken more than he had said. She said that she had used the money on personal items and clothing and that she had spent all of it. She had also said that her father would repay it. Mr. Smith was cross examined in relation to this meeting. He said in answer to questions from Counsel that Mr. Fotu had assigned his truck to Consort to meet his liability. He also agreed that Mr. Fotu's employment had been terminated and he said that he had not been able to check further how much Mr. Fotu had received. He refuted a suggestion put to him by Counsel that reference to these figures did not take place. That is the conversation ending with the sum of $50,000. He was adamant that conversation did occur. Finally he gave evidence of a fourth meeting which was with the accused and her father. Mr. Smith said that he told her father about the discussion he had had with the accused and that the figure came to $50,000. They discussed monthly instalments. He said that the accused said nothing and she was crying. At that meeting no agreement for repayment was reached. In cross examination he said that this fourth meeting was no more than a week after the third meeting. He was asked why he did not refer to it in his police statement and he said that it was because no new relevant information had come out of that meeting. It was put to him that there was no fourth meeting with the accused and her father and he said that there definitely was a fourth meeting and he denied that it was just some after thought that he had had.

The second witness was Mr. Mahendra Pratap. He was the General Manager of Consort at the time. He said that the Defendant commenced employment with Consort in May 1989. He said she was in charge of the tickets sales office. She was responsible for preparing daily waybill returns and he had instructed her to do it. He said that on the 14th October, 1992 he was doing a random check of waybill returns. He could not find an accounting coupon for a refund that had been given. He searched the files and could not find accounting coupons for any tickets from that particular book. He then reported the matter and went to the ticket office with the others. He said that at the office he told the Defendant there was no accounting coupon or waybill for the sequence of tickets including that particular refund. His evidence was that "she refused to say anything at that stage. She was really frightened and she could hardly speak. I have never seen her behaving like this before". They found a number of books with accounting coupons and intact under the shelves. She was taken to head office and Mr. Pratap says that this was because she was in charge of the ticketing office, in charge of handling all the cash. He gave some evidence regarding the first meeting that occurred when they arrived at the head office. He said that while he was there, the accused was sitting quietly and hardly spoke. He said that he was not there when she admitted taking money. He also gave evidence of a second meeting a day or two later and said that she admitted taking money and said that part of it was given to Jo Fotu. He said that at that meeting she hardly spoke, was upset and had tears in her eyes. He then gave evidence of a third meeting which he said could have been a week or so later. He said that the Defendant admitted taking the money and was making arrangements through an uncle to repay it. He also gave evidence of a fourth meeting. He said that the Defendant kept promising money would be repaid within a week or so. He said a figure of $50,000 was mentioned and she agreed to that figure. He then referred to a fifth meeting with the Defendant and her father. He said that the sum mentioned as outstanding was $50,000. Her father offered to pay monthly installments and the Defendant at that meeting said nothing.

Mr. Pratap was extensively cross examined on why various matters had not been included in his statement to the police. In particular the meetings with the accused, the negotiations for settlement and the Defendant's verbal agreement to the figure of $50,000. There was also considerable examination about an apparent inconsistency regarding which meeting the accused admitted taking money and whether or not Mr. Pratap was present. He said that he made an error because he was confused about which meeting Counsel was referring to. You may recall that it was strongly put to the witness on several occasions that he did not mention the meetings to the police because they did not occur. The witness denied that. It was put to him that all of his evidence that was not in the police statement was untrue. He replied that everything he said in the statement and in court was true. He also denied the suggestion put to him in cross examination that only the accused father and not the accused was present at the final meeting. He was also questioned about the accused's employment. He said that she was employed as tickets sales officer, in charge of the ticket sales office. She held the keys to the office, she wrote up the waybills, she submitted all the cash to head office and all receipts were issued in her name. In particular he said that "we have letters and memos to show this. There are letters on file addressed to her as officer in charge". In re-examination by Mr. Hook he said that these letters and reports were readily available. Finally in cross examination he said that it was the Defendant's full responsibility to handle the cash but she could delegate that. He said that Abdul Shariff picked up waybills, cash etc. when she was busy. He also said that he had picked them up on occasions and so had Justin Smith.

The next witness was Mr. Sudhakar the Chief Accountant. He outlined procedure for sale of tickets and submission of waybill, accounting coupons and cash to head office on a daily basis. He said the Defendant was the ticketing officer in charge of the Suva Ticket Office. He said that on the 13th of October, 1992 he went to Dominion House. He found more ticket books than the requirement of three at any one time. He said at that time 11 books were seized. He also gave evidence of a meeting that took place, immediately they returned to head office. He said the Defendant was questioned and answered very hesitatingly. She admitted taking money and giving some money to Jo Fotu. She was asked how much but gave no answer. Fotu was called in. He admitted taking money as loans and said that he had taken $2,000. The Defendant said that he had taken a lot more than that. The Defendant was asked to think overnight how much was involved. He then mentioned a second meeting the following day. He said that the Defendant said that she wanted to speak to Mr. Smith alone and he and Mr. Pratap were asked to leave the office. Mr. Sudhakar said that he was not recalled to that meeting. He also said that he was not present at any other meeting with the Defendant. He also said that he went back to Dominion House with the General Manager, Mr. Pratap, and found l6 more used or partly used books in drawers and in boxes under the counter. He said that the total number of books seized came to 27. He was cross examined by Counsel for the Defendant. In the course of this cross examination he said that at times the accused brought the money to head office and at times Richard Narayan brought it. He said that he was not working in the office when she was appointed to her position and that she was directly responsible to the General Manager, Mr. Pratap. When asked about rules for making out waybills and other duties he said that it was not a written rule but a matter of practice that money was remitted to head office everyday. As a matter of practice it was taken by the officer in charge. That is the person collecting, the person responsible who was Sue Petero. He said that she went in a taxi or in a company van to head office. He agreed that no copy of a waybill was kept at the ticketing office and that if a waybill and the money disappeared then the only evidence left would be the ticket books in the ticketing office. He also agreed that there was no numbering or register for waybills. He agreed that because of that he could not guarantee that the waybills produced as Exhibit 7 contains all the waybills sent to head office. He could not say if any were missing. He said that they are the only ones available and he agreed that some could have disappeared. He also agreed that an inspection of the waybills showed that there are returns for only 109 days during the period under consideration. He said that Mr. Sharif or Mr. Pratap should have alerted him that daily returns were not been filed but neither of them did so. He said that the money was taken to the Accounts Clerk, Abdul Sharif, for receipting. Also in cross examination he agreed that Mr. Sharif and the General Manager, Mr. Pratap had left the employment of Consort after Mr. Pratap had given his evidence at this trial. Mr. Sudhakar also gave extensive evidence of his analysis of the ticket books, waybills, accounting coupons and receipt books produced in evidence. His final figures have not been disputed for mathematical accuracy. In particular he checked for 27 ticket books seized from the sales office. He did this twice in the course of the trial to ascertain different information. First in court and then in his office with proper equipment. He said that the second check was more thorough and he relies on those figures.

In respect of each ticket in the 27 books he checked to see if there was a waybill return with accounting coupon. In the absence of those he checked to see if a revenue receipt had been issued. From this he calculated a deficiency of funds from ticket sales that had not been accounted to head office. That is, the cash from sales of tickets for which no waybill return can be found and more importantly no revenue receipt has been issued. You have been given a copy of that calculation. You will see that it lists the 27 books and gives a figure for each. Two books you will note have been excluded because they were only issued the day before they were seized and few tickets had been sold. In respect of two books, receipts were found for some tickets even though no waybills were located. Credit has been given for those in arriving at the figure shown in the appropriate column. The total then comes to $87,454.56.

Credit has also been given for two receipts which are listed on the statement. One of those receipts has no ticket numbers and the other no payer or other details have been stated. The prosecution allows for the possibility that these payments might have been made by the accused in respect of these tickets. That leaves a balance of $85,333.91 which the prosecution alleges has been misappropriated.

Mr. Sudhakar said that there is no way to remit money from the sales office to head office other than by waybill return and revenue receipt. He said that the money that is deficient was received at the ticketing office because tickets were written out and it was not received at head office because no revenue receipt was issued.

The next witness was Mr. Fotu who was previously employed as a Shipping Officer at Consort. He said in evidence that he asked the accused for a personal loan of $100.00. She said that she would give it to him from the ticket sales money. He said he told her to mark it down properly and put it on the waybill so it could be accounted. He said that she brought the money to him. He said that he subsequently borrowed more money and that she took it from the till. At first he said that he thought he had borrowed about $2,600.00. He was then shown Exhibit 2 the list that he earlier gave. He said that he compiled that list from his company's diary on which he had written the amount of each advance made to him. He said that the total was $2,165. In cross examination he said that that is the amount that he borrowed and he still owes the company about $2,000.00. He was asked what happened to the diary that he had made the notes on and he said that it had been taken by the police.

The next witness was Alisi Garnett who was employed as a Shipping Clerk at Consort. One of her duties she said was to maintain the ticket book register which is Exhibit 4. She identified entries in the register for ticket books issued to the Defendant which are the Exhibits 5-1 to 5-27. She said that they were issued to Sue at Dominion House. It was clarified in cross examination that if the accused wanted a book she would ring Alisi Garnett and tell her. Ms. Garnett would then get a ticket book, record it in the register and somebody would take it to the accused. That could be the mail boy or staff such as Senikau, Sharif or even Ms. Garnett herself. She said that sometime the accused came to the office and collected the ticket book. She also said in examination in chief that she had asked them to return the books when they were used but they did not do so. She said that her job was also to file waybills according to dates when they were finished with by the Accounts Department. These were filed on a shelf next to her table in the main office.

The next witness was Richard Narayan who also worked at the Ticketing Officer in Dominion House during the relevant period. He said in evidence that he was employed as assistant in the Ticket Office. He said the accused was in charge. She had the key to the office. She was in charge of the till. He explained how there was a cash tin in the drawer and she was the only one who had the key to that drawer. He said that when he collected money from the sale of tickets he gave it to the accused. A balance was done at the end of the day. She wrote out the waybill, accounting coupons were attached. It was put in a large envelope with the money and sealed. He said that mostly or normally it was collected by Clerks from Head office. He named Sharif, Alisi Garnett or Rajesh as people who made these collections. He said that if they did not come then they took a taxi to head office and delivered it themselves. He also said that if the accused was away, he collected the cash and prepared the waybills himself. He also mentioned that the accused had a small receipt book that she asked people to sign when they took money from the office. He was cross examined about these matters. He agreed that for the last three months before the accused left, he had a key to the door of the office and also to a separate drawer so that he could secure money when the accused was out for lunch. He said that only two ticket books would be used at one time. One for economy and one for cabin class. He also admitted that on occasions he helped prepare the waybills. That would be if there was a lot to do and perhaps covering more than one book. He would do one of the books. When asked about clerks from head office calling to pick up the waybill and cash, he said that they came about four days out of every five. He also said that it was only the duty of the accused and him to take money to head office if people from head office did not come to collect it. He said that the small receipt book kept in the ticket office was kept according to the accused for their own security. He said that that receipt book was taken to head office by Sharif with all the other documents from the sales office that he collected in a plastic bag. You may recall that in answer to a question from me, he said that the vessel Sofe, departed on a new voyage every Wednesday. When he first started working at the ticket office, the waybill was prepared after every voyage. In cross examination he said that after the Sofe sailed, the voyage collection is finished and the money was sent to head office. He then said that this procedure changed when the accountant asked the accused to supply daily waybill returns. He said that it was then done daily and this instruction was given probably four to six months before the accused left. As the accused left in October, that would be April or June. He said that before this instruction was given he could not remember how often the waybill was prepared and money submitted. In cross examination he said he could not remember how long it was after he started at the sales office that the instruction for daily returns came through. Further in cross examination he said that at times pressure was put on the ticket office by head office. At times Mr. Sharif would ring and asked how much money was available for banking. He said that there were times when money was collected by head office and waybill was done later. However in re-examination he said that this was only at a peak time like Christmas and he did not think it occurred between January and October in 1992. Also in cross-examination he said that sometimes when the accused was sick, she did not come to work at all but mostly she came in the afternoon. When asked about this in re-examination he said she came back in the afternoon and made up the waybills. However he agreed in cross examination that if the accused did not come to work or was on leave, he was then in charge or manned the ticket office. Finally in cross examination he said that during the period from January to October 1992, nothing went on in the sales office that made him suspicious. He said that he did not know anything about a substantial sum going missing.

The next witness was Abdul Sharif. He was an accounts clerk at Consort. He said that his duties included receipting moneys and banking. The accused brought waybills, accounting coupons and cash to him at head office. He counted the money and wrote out a receipt. He gave the receipt and the waybill to the Chief Accountant to verify the receipt. The Chief Accountant then gave the documents to Fotu for checking the accounting coupon sequence. The documents were then given to Alisi Garnett for filing. He said that the money was then banked the following day. He said that January to October 1992, the accused brought money to him every second or third day. He said that receipts for cash endorsed "waybill to follow" was unusual. He said that the accused came to the office in the afternoon by taxi or Consort transport. He also said that on one or two occasions, he collected money from Dominion House. This was under instructions from the accountant. He did not sign anything at the ticketing office. He was not aware of anyone else collecting money from the ticketing office. He told us that he was suspended by Consort on the 18th November 1994 and his employment was terminated in February 1995. He said the reason for this was that he shipped timber from Labasa to Suva on two occasions without paying the necessary freight to Consort Shipping. He also said that unbeknown to him Mr. Pratap had done the same thing and his employment had also been terminated. You may also recall in answer to a question from me, he said that during the whole of the time until the accused left, she brought money on a voyage basis. Two voyages per week, she brought it twice weekly. In cross examination, he said that the accused was superior to Richard Narayan and was paid slightly higher, probably about $1,000 more. He said that he could not recall Mr. Pratap picking up the cash. He said that it was not true that cash was picked up by head office people. It was brought by the accused personally and he could not recall any occasion when somebody else brought it. He said it was only on two occasions that he picked up the money himself and he never picked up cash without the waybill return. His evidence in cross examination was that she brought the cash personally on the occasions he wrote receipts. He also said that it was the accused who brought the money mostly and when taxed about that, he said that "in saying mostly I have made a mistake".

The next witness was Detective Constable Radish Singh. He was the Officer in Charge of this case. He told us how he collected all the documents that have been produced as Exhibits and he interviewed the accused. That statement such as it was, was read to you. In it the accused admitted that she worked for Consort and that she was senior was to Richard Narayan. However she refused to answer questions about the ticket money. Constable Singh also said that on the 29th March 1995, he looked for a receipt book from Dominion House Ticketing office at the head office premises but was unable to find it. He said he took two hours searching through cartons in the bulk store room. In cross examination he said he was looking for a general receipt book with something on it to show it was from Dominion House.

The final witness was Mr. Leo Smith the former Managing Director of Consort. He told us - and it was only in cross examination - although shown as a witness to be called by the Prosecution, the Prosecutor merely called him and allowed Mr. Fa to conduct cross examination. Mr. Smith said that he was Managing Director from 1988 or 89 until early 1992. He told us that the accused's father requested that she be employed by Consort to gain experience of shipping company operating procedures. She was given the position of sales ticket officer. She was responsible for sales and banking. He said that the company did not have the classification of officer in charge but the person given the position must be assumed as the officer in charge. In that respect she was the officer in charge at the ticketing office. He said he could not recollect any letter confirming that and he also said that an assistant was brought in to help her.

That completes my review of the evidence. In view of the time that I have been speaking to you and the fact that refreshment is provided for you shortly, I will take a short break now. I think there is a limit to one's span of concentration and that a short break may do some good. I 'll just take a short adjournment.

(morning adjournment)

At the adjournment I had just completed my review of the evidence. From the evidence of those witnesses together with all the documentary evidence you must determine whether the charge against the accused has been proved. Before dealing with the State and defence cases I want to refer briefly to the elements of the charge as I explained them to you to identify what is in issue in this case. Despite the length of the trial and volume of documentary evidence, I will be suggesting that only a few crucial issues are in dispute. It is of course for you to determine whether all the elements of the charge have been proved. But my comments may be of some assistance to you.

The first element to be proved is that the accused was employed by Consort Shipping. I suggest there can be no dispute about that. Mr. Leo Smith said that he engaged her and all eight witnesses from Consort Shipping said that she was employed in the Ticket Office at Dominion House. She admitted her employment when interviewed by Detective Singh and Mr. Fa conceded this point in his address to you.

The second element is that she was employed to receive into her control money paid for tickets and was required to hand it on to Consort Shipping at its head office. Again the evidence of the witnesses from Consort has not been contradicted in any way. Mr. Justin Smith said that she was the Senior Ticket Officer. Mr. Pratap said she was in charge and responsible for the waybill and cash. To verify this he pointed out in cross examination that she held the keys to the office, wrote up the waybills, submitted the cash to head office and the receipts were issued in her name. Mr. Sudhakar said that she was the officer in charge and person responsible for submitting the money to head office. Mr. Narayan said the accused was in charge and was responsible for preparing the waybills and balancing the cash. When interviewed by Detective Singh, the accused said that she was senior to Mr. Narayan. No document has been produced describing her as the officer in charge. But does this matter? Mr. Leo Smith said the company did not have any classification of officer in charge but the person holding that position was in fact the officer in charge of the ticket office. You may think that that makes complete common sense. According to these witnesses the accused's position in the ticket office made her responsible for the money received. This evidence was tested by cross examination but the witnesses remained firm. There is only their evidence. If it is accepted by you and again I stress it is a mater for your decision, but if accepted it is proof that her duties were to receive control of the money and hand it on to her employer.

The third element has two parts. First that she did in fact receive money in this way. Again if you accept the evidence of the prosecution witnesses, I suggest that there can be no doubt about that. She prepared the waybills and submitted them with the cash to head office. If you accept Mr. Narayan's evidence on this issue you will recall, he said, that the accused was in charge of the till. The money he collected from the sale of tickets, he hand to her. She kept all the money in a tin, in a locked drawer that only she had the key to it. It is entirely a matter for you, but if you accept this evidence, then you could find that she did in fact received all the money paid by passengers for tickets. On this basis, it makes no difference whatever, whether the accused or Mr. Narayan sold the particular tickets. All the money from the sale of tickets went into her till. The separate totalling of the value of tickets issued by each of them in the 27 books has added absolutely nothing in this case and neither the Counsel has mentioned it.

The second part of this element is proof that instead of handing all the money onto Consort Shipping, the accused converted $85,333.91 to her own use. This I suggest to you is the crucial issue in this case.

There is a fourth ingredient to be proved that this was done fraudulently. It has not been suggested that the accused would have any legitimate reason for converting money from the sale of tickets. This would be a deliberate breach of her obligation to her employer. You should have no difficulty in concluding that if she took any of the money, she was acting dishonestly.

So I suggest to you that what the State must prove in this case is that over the period from the 2nd of January 1992 to the 14th October 1992, the accused converted to her own use the total sum of $85,333.91. The State says that that is the total deficiency and she converted all of it. This is denied by the defence and Counsel for the Defendant identified this as the crux of the defence.

I must now put to you the respective cases for the State and the Defence. The State has not been able to call any direct evidence of the accused being seen to take money from the cash tin. Indeed crimes if premeditated are usually committed by stealth or in secrecy and in the absence of eye witnesses. It is uncommon for there to be personal observations of an alleged fraudulent embezzler, actually taking the money. The evidence relied upon by the prosecution in this case is circumstantial evidence. You are asked to piece the story together from evidence of witnesses who did not see a crime committed but give evidence of other circumstances and events that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime. A common example of circumstantial evidence is fingerprint evidence. Suppose a person's fingerprints are found on an object at the scene of the crime, such as the murder weapon. It could be inferred that the person has handled that weapon and being present at that place. That inference could be drawn, even though, there is no direct evidence that the person was seen there. On some occasions, fingerprints may be the only circumstance relied upon by the prosecution as proof of guilt. However, it is not unusual to find in a criminal case that evidence is given of a number of facts and circumstances. One witness proves one thing and another witness proves another thing. None of those things alone may be sufficient to establish guilt. But taken together one circumstance building upon the other, they may lead to the conclusion that the accused is guilty of the crime. That is what the State is asking you to do in this case. The prosecutor has directed your attention to a number of facts and circumstances which he submits have been proved by the witnesses. You are asked to draw from most facts and circumstances the inference that the accused is guilty of the charge. The defence disputes some of those matters. Counsel submits that there is no direct evidence that the accused took any money and no inference of guilt can be drawn from the circumstantial evidence.

Therefore you must first consider all the evidence and decide what facts have been proved. From those facts you are entitled to draw proper inferences. An inference is a logical deduction from facts that have been proved. It must not be mere speculation or guess work. It is not sufficient that the proved circumstances are merely consistent with the accused having committed the crime. To find her guilty you must be satisfied that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the accused committed the crime. If the inference to be drawn from the circumstantial evidence falls short of that standard then your opinion must be not guilty.

The State's submissions were put to you by Mr. Hook yesterday. He reminded you that the investigation was started by Mr. Pratap. His evidence was that he was doing a random check and could not find an accounting coupon for a refund ticket. He personally searched for accounting coupons for other tickets in the same book and could not find any. He immediately reported this matter to the Managing Director and Chief Accountant. Mr. Pratap has been critised by the Defence particularly as he has since been sacked by Consort. However, I should point out that no submission has been made that he stole money from the sale of tickets and this was never suggested to him in cross examinations. In any event you may think it unlikely that he would have initiated an investigation if he himself had been in any way involved. Mr. Hook reminded you that the company officers immediately went to the ticket office. Their evidence was that the accused was frightened, erratic and changing her story. Mr. Smith said that he was horrified to find so many ticket books had been retained at the office and not returned when completed. Mr. Hook pointed out that the accounting coupons were still in the books for many of the tickets and a total of 27 books were taken away. The accused was spoken to at several meetings and changed her story. First she said she had not taken any money. Then she said that she had given it all to Jo Fotu. Then she and Fotu were asked to provide lists of the money received. Those Exhibits are 1 and 2. Her list for something about $19,000 given to Fotu and Fotu's list for $2,165.00. Significantly, when Fotu gave evidence he was not challenged on his evidence that he received $2,165.00 as a loan to be noted by the accused on the waybill returns. It was not suggested to him that he took any more money. Mr. Hook also pointed out that the accused said that she also gave some money to Senikau and that Richard Narayan was not involved. Finally, according to the prosecution witnesses the accused admitted taking money and said it was somewhere around $50,000.00. Some negotiations took place for repayment of this sum. The State says that it was actually much more than this. Mr. Sudhakar's analysis of the 27 books shows that $85,333.91 has not been accounted for. Mr. Hook reminded you of the evidence that the accused was responsible for submitting the waybills with accounting coupons to head office. She was the person who actually did that. The evidence and documents show that this was not done on a daily basis. Mr. Hook also made reference to Mr. Sharif's evidence that the waybills and money were brought to him and a total of 53 receipts were issued in his office to the accused. Only one receipt was issued to Richard Narayan. The States says that waybill returns with accounting coupons have not been sent to head office for the tickets in the 27 books that make up the amount of the charge. Indeed for a good many of those tickets the accounting coupons were still in the books that had been retained at the ticket office. Moreover Mr. Hook emphasised there are no receipts for any of those tickets that make up the amount of the charge. The State submits that the accused must have taken that money herself. She was in complete control of the funds. The defence did not suggest to any other witness from Consort that he or she or anyone else took money. The only conclusion that can be drawn from the evidence is that the accused took the money. Accordingly it is submitted that your verdict should therefore be guilty of the charge.

I turn now to consider the defence case. Mr. Fa submits on behalf of the accused that the prosecution evidence does not prove that she embezzled this sum of $85,333.91. He is critical of that evidence. The accused did not give evidence. but all that means is that in considering the case you do not have the benefit of any evidence or explanation on oath from her. But as I said earlier there is no onus on the accused to prove her innocence. She is not obliged to give evidence. She is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that she is guilty because she has not given evidence. The fact that she has not given evidence proves nothing one way or the other. It does nothing to establish her guilt. On the other hand it also does nothing to rebut, contradict or explain the evidence put before you by the prosecution.

In his address, Mr. Fa reminded you that the onus of proof is on the State and the accused is entitled to the benefit of any reasonable doubt. He suggested that some of the prosecution witnesses were not reliable. He reminded you that he cross examined Mr. Justin Smith and put to him that the third and fourth meetings with the accused did not take place. He emphasised certain matters about Mr. Pratap's evidence. Mr. Pratap said that on occasions he had picked up the waybills and cash from the ticket office. Yet no receipts were issued by Sharif to Mr. Pratap. Mr. Pratap said that letters to the accused in relation to her employment were available but these were never produced. Mr. Fa also suggested to you that the credibility of Mr. Sharif and Mr. Pratap was suspect because they have shown themselves to be dishonest with Consort. They were both dismissed from the company, shortly after Mr.Pratap gave his evidence in this case. Mr. Sharif said that this was because they defrauded the company, shipping timber from Labasa and not paying the freight. Mr. Fa also highlighted the conflict of evidence between Mr. Sharif and Mr. Narayan. Mr. Narayan said that people from Head office collected waybills and money from the ticket office in the ratio of 4-1. Mr. Sharif said that on all occasions when the accused's name is on a receipt she brought the money personally to his office. If money was collected by other people, what happened to it? It was submitted to you that the prosecution evidence does not prove the charge against the accused. Various witnesses from Consort gave evidence of the system operated by the company.

In terms of that system $85,333.91 is not accounted for. However, the defence submits that the evidence shows only what should have been done with it. The flaw in the prosecution case is the inability to prove what happened to it. The prosecution asks you to assume that every time some of this sum was due to go to head office the accused took it for herself. It is submitted on the accused's behalf that there is no evidence to support that assumption and no evidence of fraudulent embezzlement by the accused. Therefore it is submitted you cannot find this charge proved and your opinion should be not guilty.

That completes my summary of the State and Defence cases. You must consider the evidence against all the submissions that has been made. If I have overlooked a particular submission from either the State or the Defence Counsel please weigh that up as well. I repeat that the crucial issue for consideration is whether over the period from 2nd January 1992 to 14th October 1992, the accused converted to her own use $85,333.91 from monies received at the ticketing office instead of handing on to Consort Shipping. If that is proved beyond reasonable doubt your opinion will be guilty. If that is not proved you are left with a reasonable doubt, your opinion will be not guilty.

Gentlemen Assessors, that concludes my summing up of the law and evidence in this particular trial. We have now reached the stage where you must retire to your room to deliberate together and form your individual opinions on whether the charge has been proved against the accused. You may have with you any of the exhibits that you would like to consider. When you have reached your separate decisions we will all have come back to court and you will be asked to state your opinions as to whether the accused is guilty or not guilty of the charge. You will each be asked that question in turn. Would you please now retire to consider your opinions. When you have made your decisions would you please advise the court officer and the court will reconvene to receive your opinions. Retire now please before I adjourn. Take with you whatever you want.

JUSTICE D.B. PAIN

HAC0025S.93S