State v Yavala [2013] FJMC 271; Criminal Case 1284.10 (26 June 2013)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 1284/10

State

V

Emele Yavala

Prosecution: Ms Jayneeta Prasad (DPP's Office)
Accused: Present – In Person

Judgment

Introduction

Emele Yavala is charged with larceny by servant, contrary to Section 274 (a) (ii) of the Penal Code. The Particulars of Offence is that:

"Emele Yavala between the 2nd day of February 2009 to 2nd day of October 2009 at Suva in the Central Division being employed as a servant of Ministry of Education stole $39,414.00 cash the property of Government of Fiji."

The Standard and Burden of Proof

The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt. Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice."

The Elements of the Offence

The elements of the offence that the prosecutions need to prove in order to prove the charge are as follows:

(a) The identity of the accused (Emele Yavala), (as the person employed by the Ministry of Education)
(b) The accused (Emele Yavala) being a servant,
(c) Stole the money belonging to the master or the employer (Ministry of Education).

The Evidence

The prosecution called 3 witnesses. The accused gave sworn evidence. She did not call any other witnesses. The Court has noted all the evidence that was given in Court and all the documents that were tendered.

Analysis of Evidence in Relation to the Law

This Court has analysed all the evidence given by all the witnesses in this case. The onus is on the prosecution to prove the elements of the charge (as laid out above).

There is no dispute in this case, between the accused and the prosecution as to the identity of the accused person or whether the accused was in the employ of the Ministry of Education (MOE) and that she was a servant of the employer (MOE). There is also no dispute that $39,414.00 was receipted and received by the accused on behalf of the Ministry of Education. This sum of money according to the accused is missing from her office and she did not take it. The prosecution's version is that the accused stole this money which was in her custody.
The crucial issue for this Court to determine in this case is whether the accused stole the money belonging to the Ministry of Education or it went missing from the accused's office and was taken by someone else.

The evidence of PW-1, Iva Driu, who audited the accounts, was that the accused who received the money as the school bursar was required to send the lodgment slips which are deposit slips together with the blue copy from the receipt book. She further stated that the monies received by the accused were not deposited.

The accused told this Court in cross-examination that she "Received all cash in the report. Noted via receipts. I signed in the receipts. Was to bank that particular date. I did not bank the money. Did some banking and left a few. Received $39414.00 and did not bank all this. Put all these in envelope in office. Someone else took it. Money went missing before I went on leave. No money when Ministry of Education officials went in. Small sum of money missing. I knew money was missing, did not report to the Principal. I wanted to report but was frightened. Some staff would come to me for morning tea. I was present. No, I did not take the money. Did not take a single dollar. 2 keys, one with me and other with typist. My key went missing. I took typists key. I only had the key. Noticed money was missing. did not report this. Told colleagues that some money missing. told typist and office workers, not Principal. Was looking for funds to deposit into account. No witnesses for me. Received money did not deposit, is incorrect not to deposit."

This Court notes that the monies were missing for a period of time from February to October 2009. The accused stated that she kept the money in an envelope in a drawer and the money went missing. The accused was entrusted with the responsibility as the bursar which involved receiving and lodging/depositing the monies for the Ministry of Education. She was the only one in her office carrying out the duties of the bursar. The money which went missing is not a one off sum. A few receipted sum were deposited, others were not. The accused failed to explain why some monies were deposited and rest would have been kept in her office, if she really did that. The accused also failed to explain the reason for keeping the monies in the drawer and not banking or lodging daily as she was required to do so. The accused also took no steps to report the loss, if there was any to her Supervisors or the School Principal.

Looking at the evidence in totality this Court finds that the accused had control of the cash, she received all the monies that were stolen. The accused was required to lodge the monies daily. She failed to do so. The accused was asked for the money by the Principal and the accused did not give the money and did not report for the work. The Principal then sought Ministry's assistance. When Ministry officials came they found out that the money was not being banked/lodged. A thorough audit was carried out which revealed that monies were stolen.

This Court has also warned itself that in considering circumstantial evidence it must be satisfied beyond reasonable doubt that the only reasonable inference available is the guilt of the accused before this Court can find her guilty. If the Court finds that there are other reasonable inferences which can be drawn which are consistent with the Accused's innocence or if the Court has a reasonable doubt about it, then the Court should find the accused not guilty.

Having noted all the evidence and having analyzed it in totality this Court is satisfied beyond reasonable doubt that it can draw no other inference but the guilt of the accused. There are no other reasonable inference that this Court can draw which are consistent with the accused's innocence.

Having noted the evidence of the accused person and her demeanor, this court does not believe her. She was evasive and choosy with the evidence that she gave in Court. She gave a version which suited her. She further agreed to repay if given time by this Court. This Court believes the prosecution witnesses and finds that the prosecution has proven each of the elements of the offence, beyond reasonable doubt.

The accused is found guilty of the charge and convicted of the same.

This Court will now hear the accused's mitigation.

Chaitanya Lakshman
Resident Magistrate
26th June 2013