Rasaciva v The State [1997] FJHC 161; Haa0048j.97t (29 October 1997)

Fiji Islands - Rasaciva v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

CRIMINAL APPEAL NO. 48 OF 1997
(TAVEUNI MC CASE 170/96)

BETWEEN:

ALOWESI NAVAKADEDE RASACIVA
Appellant

and:

THE STATE
Respondent

Appellant in Person
Miss L. Laveti for the Rdent

JUDGMENT

The Appellant, a man of previous good character, was convicted by the Taveuni Magistrate Court (M. Fernando Esq) after trial of 5 offences of larceny by servant contrary to Section 274(b)(i) of the Penal Code (Cap 17). He was sentenced to a total of 2 years imprisonment. He now appeals against conviction and sentence.

The Appellant was a teller employed by the NBF at its Taveuni Branch. Like other branches of the bank this branch has computer terminals at the counter which link directly to the customers account.

The Appellant told me that the system for payment into an account was quite straightforward. Upon being presented with a paying in slip the teller was supposed to access the relevant account and enter the amount being credited. The counterfoil of the paying-in slip was then stamped and returned to the customer while the funds paid in were placed in the tellers receiving drawer.

The case against the Appellant was that on each of the occasions charged he credited the account in question with less than he had actually received and pocketed the difference. The discrepancies came to light when the customers cross checked their pay-in slip counterfoils with their bank statements.

Each charge was supported by evidence from the payer-in who identified the Appellant as the teller, by the paying-in slips counterfoils and by the bank statements revealing the discrepancies. After the losses came to light the Appellant was interviewed by the police under caution. In his interview the Appellant admitted taking the missing sums and said that he had spent the money on travelling expenses, foodstuffs and building materials.

When the Appellant came to give evidence himself he retracted his confession to the police. He told the Court that what he had told the police was all lies. He had made up stories because this was the first time he had ever been to a police station. He accepted that the monies had indeed been paid into him as claimed, that the losses had occurred and that they were his responsibility. He however denied stealing anything, said he was a religious person and that had he wanted to he could have stolen much more. The Appellant offered as an explanation for the missing sums the poor organisation of the branch of the bank. Over the three years that he had worked as a teller he had often made accounting errors. Furthermore, the other members of staff had had access to his cash drawer and sometimes sums had been borrowed from him but not repaid. In further explanation offered to me during the hearing of the appeal the Appellant said that sometimes he had been so busy that he had not had time to credit the individual accounts at the time of the paying in. He had simply stamped the counterfoil and had then left the crediting until later. This, it was suggested, could explain how in the interval between paying-in and the accounts being credited there was an opportunity for the amounts in question to go missing.

The Resident Magistrate took to view that the case against the Appellant was sufficiently proved by the paying-in witnesses and the documents which they produced. While I agree that this evidence constituted a strong prima facie case it is however necessary to deal with the Appellant’s defence which essentially amounted to an admission of responsibility for the losses coupled with a denial of theft.

As pointed out by the Resident Magistrate the Appellant made a complete confession to the police but 5 days later, after he had spoken to his father the confession was retracted when he was formally charged (see Exhibit 11). The explanation for the confession made was a little unusual. As has been seen it was not that the Appellant was assaulted or harassed in any way; it was just that it was his first experience at a police station. Why, however such an experience should lead an innocent man to make up self incriminating fables was never explained.

This is not the only difficulty facing the Appellant. The second difficulty lies in the late crediting system described above and which was offered by the Appellant as a form of explanation of what might have occurred. The difficulty is that in each case the Appellant had fed into the computer a sum of money which was quite different from the amount which had been written down in the paying in slips. In other words, the amounts credited were not merely wrongly credited as a result of transcription error. Count 4 provides an example: the amount paid in was $535.96 but the amount credited was $485.96 - a quite different set of figures.

It has been said that “a confession ... well proved is the best evidence that can be produced (R v Baldry (1852) 2 Den 430, 446; 169 ER 568, 574). The Appellant’s explanation of how the confession came to be given to the police and how the wrong amounts were paid into the various accounts do not bear scrutiny. The Resident Magistrate was fully justify in rejecting the defence and in finding the case against the Appellant proved. The appeal against conviction is dismissed.

As to sentence, although the Appellant was a first offender the offences were obviously premeditated and carefully planned. Nothing has been recovered. The maximum penalty for this type of violation of trust is 14 years imprisonment. In my view the sentence passed was entirely proper in all the circumstances. The appeal against sentence is also dismissed.

M.D. Scott
Judge

29 October 1997.

Haa0048j.97t