Republic v Atantarawa [1986] KIHC 2; Criminal Case 11 of 1986 (27 March 1986)

IN THE HIGH COURT OF KIRIBATI
BETIO

High Court Criminal Case 11/86

REPUBLIC

v.

TIMI ATANTARAWA

27.3.86

JUDGMENT

The accused person is charged on four counts with an alternative count to count 4. The first three counts are charges of false accounting contrary to section 299 of the Penal Code. The charges relate to the alterations to the police pay roll between August to October 1983 at Betio when the accused person was a clerk or servant of the Kiribati Police.

It is said that he altered the various figures on the pay roll relating to arrears. It is said that he did this in three cases in which the persons entitled to the arrears were Timi Tio, Taniera Kataua and Timirau Teem respectively. It is also said that the alterations were made wilfully and with intent to defraud. Count four charges him with stealing as a servant the sum of $130 and the alternative count charges him with conversion.

The evidence in the case is mainly circumstantial. This is perfectly acceptable as evidence but it has to reach the same standard of proof as all other evidence in criminal matters. After hearing all the evidence and any unsworn statement which the accused may wish to make the court can only convict if it is satisfied beyond a reasonable doubt that the accused has been shown by evidence to have committed the offences charged. In the event of there being a reasonable doubt then the accused must have the benefit of such a doubt and be acquitted. There is no onus at all upon the accused prove his innocence.

Amongst the facts which are not disputed, are that the accused person was working for the police as an acting executive office. It was his duty to deal with pay including payment of any arrears due to members of the force. He was assisted in this by Nei Auataake, and he was under the direction of Iotua a Senior police officer. The primary responsibility for the efficient running of that section was the accuseds. He had the keys to the safe and he was in charge of the money. In the course of his business he received a pay roll showing arrears due to certain police officers. He obtained the money and began to pay out. There is evidence that the pay roll was not securely kept but was available to almost anyone in the office and this was because officers wished to consult it at times when the accused person was not available. According to the accuseds caution statement which was not challenged Ex B he received the pay roll on 25 August 1983 and he began to pay out the arrears to those working on Tarawa first before he paid those working on the outer islands. After completing this payment there was no surplus.

He left the police and in August 1984 he was told that something was wrong with the pay roll. He inspected it and found that alterations had been made. No serious dispute arises as to those facts and they are proved.

Constable Taniera gave evidence about his pay. He contacted the accused about his arrears and said that the accused told him the arrears were about fifty dollars. The conversation was by telephone. He said that the accused told him there was a change in the figures when he inquired about these arrears in 1984. He did not tell Taniera the amount or why there had been a change in the figures. He contacted the accused again and the accused promised to look into the matter. This took place when the accused contacted Taniera again and told him he had inquired at Finance and had received no help so he was going to pay the arrears himself. He received the arrears from the accused who gave him a paper which he took to Finance.

Timerau was also entitled to arrears and contacted the accused. The arrears were paid by the accused in cash. He could not say from the pay roll whether he was to receive $116 or $166 and could not remember how much he did receive.

Teneti Tio told the court that she contacted the police about arrears and spoke to the accused who asked where she had heard about the arrears but confirmed that there were arrears due. She was told to come back the next day as accused was busy. She sent her son and he came back with $39 and some cents. Later the accused gave another $40.

Tabite PW4 told the court that she saw the accused about Teneti Tio's arrears. She collected them and signed for them. They were $37.96. The accused was again seen by the witness about the amount of the arrears and he promised to pay back. He later paid $40.

Autaake PW5 worked under the accused at the police. She said that the pay roll in question came from the Ministry of Finance. She said that she thought she collected the money from this payment voucher for the arrears and gave it to the accused who counted the money. He then compared it with the summary. This evidence was not challenged in cross examination. She said that she did not work with the pay roll in the course of her work but then said that an entry on the pay roll namely the star was made by her.

PW6 interviewed the accused and produced the questions he asked the accused and answers the accused gave.

PW7 produced the documents in the case. He said that when he took over from the accused the cash and the books balanced.

PW8 Mr Iotua said that only Timi had the authority to use the key. The safe was in Timi's charge. He said that he told the accused to leave the pay roll out so that if inquiries were made in his absence he Iotua could answer them. He said that before the payroll could be altered there had to be a complaint and that if the payroll was false there should be a surplus in the safe.

PW9 the computer operator from Finance compared the original and duplicate pay rolls and observed that they had been altered. When she last saw the two documents they were the same.

The accused elected to make an unsworn statement. In this he denied altering the figures and he said that he was not aware of the alteration until it was pointed out to him.

He pointed out that Taniera got his money from Finance and that he could not remember how much he gave to Timerau. In relation to Nei Tim he denied admitting that he had altered the figures and he denied checking the money in the safe everytime he came back or the money which appears to have been in his drawer. He also said that he did not check the cash against the pay roll when he received it.

There can be no doubt that the accused was employed by the police as an acting E.O. In relation to the first three charges of false accounting the first point to be decided is whether the documents are false, or contain false entries. As to the pay roll itself it is not false but there are entries which have obviously been altered.

One count upon which no falsity has been proved is count 3 which relates to the amount to Timerau. There is no direct evidence that this had been altered and no evidence from Timerau as to how much he received. It is therefore impossible on the evidence adduced to show that the payroll had been altered in respect of this officer or that he did not received all he was entitled to. For this reason count three must fail and the accused must be acquitted on that charge.

In relation to counts one and two there are obvious alterations to the entries relating to Taniera and Timi Tio. Taniera's has been altered from $98.93 to $58.93. Tio has been altered from a figure which cannot now be read back to another figure of $77.96 which was the original figure.

The sole question to be decided is who made these alterations. The alterations have occurred since the pay roll left Finance. It was not like that when it left the computer room. It has since passed through the hands of a number of people including the accused. Potentially anyone could have made the alterations.

The prosecution witnesses gave their evidence in a straight forward and sometimes not very competent way. None of them had anything to hide and it is not possible to view any of them as accomplices. It might be argued that Iotua and Auataake could possibly have committed this crime but it was never expressly suggested by the defence and there is no evidence upon which it would be possible to infer it.

While anyone could have made the alterations the facts strongly suggest that it was the accused who did so.

The basic fact is that it was the accused who received the money from Nei Auataake. He made no complaint about it to her. Indeed he never made any complaint about the pay roll or the money until the police raised the matter.

The alterations are patent and it must have been clear to the accused if he had even bothered to glance albeit briefly at the pay roll, yet he took no action about them. Why?

In his unsworn statement he said that he had never checked the pay roll against the cash but he can hardly claim that he never checked the pay roll at all. He was using it to pay out against and must have seen it. If the alterations were there he cannot have failed to notice them and cannot be telling the truth if he says otherwise. If they were not there then it follows that they must have been done after the accused had finished with the pay roll. It then becomes pertinent to ask why should anyone forge a pay roll which had already been dealt with? The accused's unsworn statement has to be considered. The effect of an unsworn statement is set out in Archbold 40th Edition para 582.

"When a defendant makes an unsworn statement from the dock the judge need not read out the statement to the jury but he should remind them of it and tell them that though it is not sworn evidence, which can be the subject of cross examination, nevertheless they can attach such weight to it as they think fit and should take it into consideration in deciding whether the prosecution have proved their case".

Archbold comments:

"What is said in such a statement is not altogether to be brushed aside, but its potential effect is persuasive rather than evidential. It cannot prove facts not otherwise proved by the evidence but it might show the evidence in a different light. The jury should be invited to consider the statement in relation to the evidence as a whole."

It is therefore time to consider the accused's unsworn statement and to decide what weight when viewed against the whole if the other evidence should be put on it.

After careful consideration of it I have decided that very little if any weight can be attached to it.

It is contradicted in a number of important respects by the accused's earlier statements to the police. It is clear from these, which were not challenged, that the accused did, as any prudent officer would do, check the cash given to him by Nei Auataake against the pay roll. He is lying about this in his unsworn statement. It is clear from the evidence that it was mainly the accused who paid out the arrears of salary and he admitted in his caution statement that he paid the arrears from money which he kept locked in the safe or drawer. He was asked in this statement how many times Auataake paid arrears and said Q 46 about two or three times. He said in A 49 that Iotua paid once. In relation to Auataake he was asked Q 52 "In your answer to Q 39 you’ve said that the payment made in the office couldn’t cause any cash deficiency and you are now saying that you didn’t always witness Auataake as she made payment which is right?" and he answered "Sometimes I confirm what she did, but at times I did not because I was busy doing something else. In question 53 he was asked "How many times did you agree with what she did?" and he replied "Two times, and on the third occasion I did not see her clearly."

It would therefore seem that if Auataake was to commit these offence she had one occasion only on which she could have done it and Iotua had one such occasion only.

In an additional caution statement the accused admitted the shortage was caused by his carelessness. He then said that he did not carry out his duties properly and allowed Auataake to get the key of the safe and the drawer two times in September 1983 or October. After seeking to blame Auataake for this he then attempted to inculpate Iotua by adding he found he had left the key of the safe in the office and Iotua had it. But in relation to Auataake he further sought to blame her by saying that he gave her the key to the safe on two occasions as he was dealing with the wages Q 66 but then he added in A 67 that on these occasions he had the arrears locked in a drawer.

Adverting to the incident with Iotua and the keys accused was asked in Q 74 if he checked in his safe after Iotua returned the keys and he said he didn’t. In reply to a question 75 "Why was that?" he replied "Superintendent Iotua told me to check my safe and my drawer but because I trusted him I didn’t do so." In Q 77 he agreed that he paid out the arrears to Nei Tabete and in Q 78 to Timirau. He was also asked in Q 92.

"Do you remember what you have said in which you admitted that you amended the figures concerning the net amounts of those people during your meeting with Nei Rabete and Nei Tio? "and he replied" I was uncertain. Perhaps that’s what I said to them. The witnesses called in Court did not mention this in their evidence.

In question 102 he was asked to explain why he lied about where he got the money to repay the arrears and he said "There is nothing I could say about this."

If the accused's caution statement and questions and answers are examined in detail they vary considerably from what he told the Court in his unsworn statement.

The police statements were not challenged. For this reason I prefer to put more weight on them and to put little if any weight on the unsworn statement.

At the end of the day there is one question only which as to be decided. Does the evidence adduced by the prosecution prove the guilt of the accused beyond a reasonable doubt. The evidence is largely circumstantial.

Professor Kenny in his outlines of Criminal Law 15th edition says "No distrust of circumstantial evidence has been shown by English law. It does not even require that direct evidence shall receive any preference over circumstantial."

There is strong circumstantial evidence that accused stole the money.

In McGreevy v DPP 1973 1 All E.R. 503 it was held that there was no special rule requiring the judge to direct the jury that they must not convict unless they are satisfied that the facts proved are not only consistent with the guilt of the accused but also such as to be inconsistent with any other reasonable conclusion. Is there any other reasonable conclusion with which facts proved are consistent so that it can be inferred that the accused did not steal the money.

Now the facts are that the accused was the person who was in charge of the pay at the police Headquarter and he was responsible for the proper application of it. When he received the money he did check it and it was correct in that it agreed with the total on the payroll. I accept that he may not have cast up the actual figures but he clearly did satisfy himself as any prudent officer would that the sum he received was the sum in the payroll.

I am also satisfied that he then began to pay out the arrears. He paid the Tarawa arrears first. In the course of this if there had been an alteration made by someone else he must have noticed it and would have been bound to seek an explanation for it. He did not do so. If the alteration was there then it can only have been the accused who made the alterations because if some unauthorised person had made them he would have been bound to see them and inquire about them. He did not do so and therefore it follows that either he made them himself which is why he did not inquire, or else they were not there.

If they were not there when he left it follows that someone else must have made them after he left. Who could that person possibly be? This idea is so fanciful that it must be rejected. Who but the accused could benefit from an alteration? Who could possibly benefit from making such an alteration after he had left? The money was correct when he left and it is not suggested that later there was a shortage altered between the computer room and the police Headquarter. This is an entirely fanciful notion as the accused or Auataake or Iotua would have been bound to notice it when dealing with it.

I am satisfied from the accused's reply to the questions in his caution statement that neither Iotua nor Auataake had any motive or real opportunity to alter the pay roll or steal the money. In his statement to police he admits doing so in a half hearted sort of way. It is possibly a marginal piece of evidence in support of the accsued's guilt that he took it upon himself to repay the arrears which were not paid out. In the case of Taniera he was sent to Finance. There is no explanation as to why this was so but clearly Finance is in the last resort responsible for government salaries. Equally it is consistent with the accused not being responsible but it is difficult to see why he should accept responsibility for some of the alteration by paying himself if he was not guilty on all of them.

I have no doubt that the accused made the alterations in Counts 1 and 2. He did this because he has to cover up the money which he must have taken from his safe. It is I think significant that he had no shortage on handover but had the true figures been in the payroll then he would have done.

The accused person must have borrowed the money from the arrears and used it for himself. This he had no right to do and it was stealing. When he took that money he must have made the alterations to cover it up and thus he acted with a fraudulent intent and wilfully. There is no other reasonable hypothesis which will fit the facts as proved.

Of course it is just possible someone else might have altered the payroll but is not in the least probable. Who else would have motive except Nei Auataake and Mr Iotua and having seen both of them in the box and considered the accuseds caution statement I am satisfied that they did not nor was it ever expressly suggested to either of them that they did do so.

The accused person is found guilty as charged on Counts 1, 2 and convicted accordingly. As to Count 4 the evidence proves the theft of $80 only and accused is found guilty of larceny as a servant in that amount only and not as charged.

R.G. Topping
Judge