Teeta v Republic [2008] KICA 1; Criminal Appeal 3 of 2008 (20 August 2008)

In the Kiribati Court of Appeal
Criminal Jurisdiction
Held at Betio
Kiribati

Criminal Appeal No 3 of 2008

Between:

EENA TEETA
Appellant

And:

THE REPUBLIC
Respondent

Before: Tompkins JA
Fisher JA
Smellie JA

Counsel: Giles O’Brien-Hartcher for appellant
Pauline Beiatau for respondent

Date of Hearing: 15 August 2008
Date of Judgment: 20 August 2008

JUDGMENT OF THE COURT

The appellant was a customs officer at Kiritimati Island when, in February 2004, he was put in charge of cash recoveries which involved issuing receipts, receiving moneys, keeping a cash book and banking. It was alleged that almost immediately he embarked upon a series of forgeries and embezzlements resulting in the defrauding of the Republic of in excess of $100,000.

After a lengthy investigation he was charged with numerous offences. In the end, however, only 12 counts were pursued at trial before the Chief Justice on 17 and 18 June 2008. By way of example we set out counts 1 and 16 which relate to the largest theft of $40,000.

Count 1

Forgery contrary to section 334(1) of the Penal Code, Cap. 67.

Eena Teeta on the 16th February 2004 whilst employed as a Preventive officer in Kiritimati Island in the Republic of Kiribati, forged a document namely cash book in order to be used as genuine by recording in it the amount of $5,000.40 when it was supposed to be $45,000.40.

Count 16

Embezzlement by clerks or servants contrary to section 266(a)(ii) of the Penal Code, Cap. 67.

Eena Teeta on an unknown date between 1st June 2004 and
30th June 2004 whilst employed as a Preventive officer in the Kiritimati Island in the Republic of Kiribati fraudulently embezzled the sum of $40,000 received by him on account of his employer.

All the charges, however, can be summarised as set out below. Also it will be appreciated that while counts 1 and 16 relate to the $40,000 the other counts are arranged in pairs recording both the forgery and embezzlement in relation to specific amounts.

Count 1, forgery on 16/2/04 of cash book to show $5,000.40 instead of $45,000.

Count 2, embezzlement on 16/2/04 of $3,000 the property of the Republic.

Count 3, forgery on 16/2/04 of cash book to show $1,146.70 instead of $4,146.70.

Count 6, embezzlement on 21/3/04 of $11,999.40 the property of the Republic.

Count 7, forgery on 21/3/04 of a cash book to show $1.60 instead of $12,001.

Count 10, embezzlement of 16/5/04 of $10,001 the property of the Republic.

Count 11, forgery on 6/5/04 of cash book to show $8,001 instead of $18,001.

Count 12, embezzlement on 10/5/04 of $10,000 the property of the Republic.

Count 13, forgery on 10/5/04 of a cash book to show $8,001 instead of $18,001.

Count 14, embezzlement on 10/5/04 of $30,000 the property of the Republic.

Count 15, forgery on 10/4/04 of cash book to show $5,647.95 instead of $35,647.95.

Count 16, embezzlement of $40,000 the property of the Republic.

The appellant was convicted on all the above counts, six of forgery and six of embezzlement. In his judgment finding the appellant guilty the Chief Justice recorded that he had "no hesitation in accepting beyond reasonable doubt the evidence of the prosecution witnesses". He referred specifically to an admission made by the appellant in respect of counts 1 and 16 which involved the embezzlement of $40,000. The circumstances of several other charges (counts 2, 3, 7 and 10) were also referred to the Chief Justice appearing to rely there on certain copy receipts. His final holding at the foot of page four of his judgment was:

I have concluded that the accused engaged in a fraudulent course of conduct – receiving moneys, altering the blue copy receipts to show a lesser amount than on the original receipt, entering the altered amount in the cash book and either banking that amount or handing it to Accounts. The accused denied taking the moneys not banked but could give no explanation as to what had happened to them. He was responsible as cashier for writing up the cash book. No suggestion anyone else was or had taken any money. He took the money beyond reasonable doubt. Prosecution has proved beyond reasonable doubt the accused is guilty.

The only challenge to those findings of guilt was that the High Court had "erred in admitting copies of documents which were not verified according to section 35 of the Evidence Amendment Act 2003". Counsel for the appellant did not identify which charges were affected. Clearly the conviction in respect of the worst offending (counts 1 and 16) which involve the embezzlement of $40,000 was founded upon the appellant’s admission to the officer in charge of Customs on Kiritimati Island in which he acknowledged he had taken the money and by inevitable inference that he had forged the copy receipt and cash book entries to conceal his theft.

In respect of the balance of counts, however, the position was that the prosecution relied upon false duplicate receipts and forged entries in the cash book.

Mr O’Brien-Hartcher pointed out that instead of originals the Republic had in some cases relied upon photocopies of receipts and a photocopy of the cash book. He submitted that these were inadmissible given s 35 of the Evidence Act 2003 which provides:

35.(1) A copy of an entry in a book of account shall not be admissible evidence unless it is further proved that the copy has been examined with the original entry and is correct.

(2) Such proof shall be given by some person who has examined the copy with the original entry and may be given either orally or by an affidavit sworn or by a declaration made before any commissioner or person authorized to take affidavits or statutory declarations.

The starting point is to consider whether, without s 35, the copies would have been admissible.

It is true that the traditional best evidence rule used to require parties to produce originals where available. That rule has fallen into disuse since the advent of the photocopier. Production of the original remains the preferred way in which to prove a document since in some cases photocopies can lack physical characteristics unique to the original. But it is no longer the case that at common law photocopies will be rejected solely on the ground that they are not the best evidence. Section 15 of the Evidence Act makes it plain that in general evidence that would have been admissible at common law has continued to be admissible since the Act except where expressly excluded.

That is the background against which s 35 falls to be considered. Parliament can still decree that something which would otherwise have been admissible at common law is to be excluded. But the starting point must be that the photocopies in this case were admissible unless positively excluded by s 35, or for some other good reason.

In the present case there was evidence from a witness that "I examined original cash book. P2 is an exact copy". Although that evidence was challenged in cross-examination, it was open to the Chief Justice to accept it, particularly as it was supported by another witness. The cashbook copy was therefore admissible under s 35(2).

There does not appear to have been any similar oral evidence in relation to the receipts. However we do not think that a primary record recording a single transaction falls within the expression "book of account" as it is used in s 35. That expression is defined in s 32 as follows:

"Book of account" includes ledger, day book, cash book, account book, and any other document used in the ordinary business of a bank, or in the ordinary course of any other business for recording the financial transactions of the business and also includes any document used in the ordinary course of any business to record production in, or stock in trade held for, the business.

In our view the definition confines "book of account" to secondary records purporting to bring together into one place a summary of the effect of individual transactions for which the primary records will be found elsewhere. More caution is needed when it comes to the reliability of secondary bookkeeping records. Secondary records of that kind are usually prepared by someone who is attempting to summarise the result of transactions effected by others. That may well have been the rationale behind s 35.

Mr O’Brien-Hartcher submitted that for the purpose of the definition in s 32, a receipt was "any other document used ... in the ordinary course of any other business for recording the financial transactions of the business". However we think that the reference to "transactions" in the plural points to a summary of transactions, particularly given that all other expressions used in the definition have the same flavour.

We conclude that the photocopies of the receipts were admissible in evidence because they were outside the scope of s 35 of the Evidence Act.

For the sake of completeness we would add that s 34 of the Evidence Act did not pose any obstacle to the prosecution either. That provision requires that an entry or copy of an entry in a book of account is not admissible unless certain conditions relating to the ordinary course of business and independent verification are satisfied. We have already concluded that the individual receipts were not books of account. As to the cash book, the requirement that it was at the time of the making of the entries, "an ordinary book of account of the business to which it relates" and that it was made "in the usual and ordinary course of that business" was amply proved by the officer in charge of Customs – Iteata Tuana. He fits the description of the responsible person. Counsel for the appellant submitted the Customs officers were engaged in a business, and as a matter of construction, we so hold.

We conclude that the copies of the cash book and receipts were admissible. The only ground of appeal against conviction therefore fails.

Mr O’Brien-Hartcher advanced two arguments of an analytical nature in support of the appeal against sentence.

One was that the Chief Justice had failed to pay sufficient regard to the totality principle in that having dealt with each count individually "he did not at the end of the process take a look to see whether the total sentence was just and appropriate."

We can see no basis for that suggestion. The Chief Justice twice said that the total sentence was ten years. It can scarcely have escaped his attention that the only question that really mattered was whether ten years was an appropriate sentence for the offending as a whole.

The other argument was that the Chief Justice had failed to distinguish between the different individual sums involved when he imposed a sentence of nine years on all embezzlement charges and one year on all forgery charges.

However if ten years was the appropriate total sentence it is largely immaterial how the total was constituted. Nine years was appropriately a little over half the maximum sentence of 14 years for embezzlement. One year was appropriately half the maximum of two years for forgery. Further differentiation between the individual counts was not called for.

Implicit in Mr O’Brien-Hartcher’s submissions was the argument that the sentence of ten years was manifestly excessive. That we see as the real ground of appeal.

In support Mr O’Brien-Hartcher cited two embezzlement precedents, Republic v Neeti [2003] KIHC 80 (3 years’ imprisonment suspended following embezzlement of $58,648) and Republic v Tanentoa [2004] KIHC 111 (1 year’s imprisonment following embezzlement of $1167.50).

However those were cases in which the sums involved were smaller, the offenders pleaded guilty, they were clearly cooperative and remorseful, and they had proposals for repayment. The suspension in Neeti was due to special factors not present in this case.

In the present case the sum involved was very large, there was a particularly serious breach of trust in that the appellant was a servant of the state, there were no signs of remorse, there could be no discount for a guilty plea and the appellant was uncooperative. He would not say where the money went and had no proposals for repayment.

The gross breach of trust and theft from the state inevitably placed the offending in the upper level of seriousness. The forgery penalty imposed was half the maximum term. The embezzlement penalty of 9 years where the maximum was 14 years was severe. But it needed to deter others, to adequately punish the offender and express the community’s complete rejection of such breaches of trust.

While we think that the sentence of ten years was at the upper end of the range we are not prepared to say that it was manifestly excessive.

The appeals against conviction and sentence are dismissed.

Tompkins JA
Fisher JA
Smellie JA