Republic v Talaika [1986] KIHC 7; Criminal Case 03 of 1986 (30 May 1986)

IN THE HIGH COURT OF KIRIBATI
HOLDEN AT BETIO

HIGH COURT CRIMINAL CASE NO 3/86

BETWEEN:

THE REPUBLIC

AND:

MANUELA TALAIKA

Mr Hazelton for the Republic
Mr Ratieta for the Accused

JUDGMENT

1. The accused is charged under S266(a)(1) of the Penal Code (Cap 67) for larceny by a servant and in the alternative he is charged for conversion contrary to section 271(1 ) (c) (1 ) of the Penal Code (Cap 67).

2. The accused pleaded not guilty to the charges.

3. The facts as alleged against him is that between 8th June 1982 and 27th November 1982 whilst employed as a cashier in the Ministry of Line and Phoenix groups Island in Kiritimati he stole or fraudulently converted to his own use or benefit money belonging to his employer that is, the sum of $3,486.82.

4. The Prosecution in support of its case called five witnesses and tendered the deposition of the 6th witness now residing in the United Kingdom. The accused gave evidence on oath on his own behalf and called one witness.

5. PWl (Detective Constable Tominiko) told the court that he investigated the case and during the course of his investigations he collected certain documents. These were tendered as exhibits A to K. Under cross examination he said he did not visit Kiritimati Island and cannot say that the accused signed all the receipts.

6. PW2 (Aana Roaia) a clerk in the Ministry of Finance told the court that she deals with cheques and overdrafts from the bank relating to employees. The ministry decided on 2nd March, 1983 that the sum of $28.39 should be deducted fortnightly from the accused pay as repayments for the overdrawn account. This amount is now reduced to $15 fortnightly.

7. Under cross examination, she said the order came from the Chief Accountant and the outstanding balance to be recovered from the accused is $1603.90. She tendered the accused's statement of balance and this was admitted as exhibit 'L'. The accused is still working at the Ministry of Natural Resources.

8. PW3 (Teimarane Tekautu), an accounts clerk in the Ministry of Finance, said he gave PW1 exhibit L (statement of balance). He has never seen exhibit J (copies of the accused's personal cheques). Under cross examination he said he cannot remember dealing with the cheques.

9. PW4 (Temari Manoa) an executive officer in the Ministry of Line and Phoenix group told the court that for six years he looked after the accounts of the Ministry. He knew the accused for more than two years. The accused was a cashier in Christmas Island and left at the end of 1982.

10. He made a special check in November 1982 of the accused's cash book and records of money received. The money is kept in the safe and Receipts are recorded in the cash book. The accused is the only person who had the key to the safe.

11. The accused objected to his making the special check. He checked exhibit 'G' (cash book) against the cash in the safe but it did not balance. The cash book balance was $9502.60. The cash in hand was $9530.91.

12. During the check he discovered that the accused was using two receipts books. He left one at home but he ordered him to go and fetch it and he did. He identified exhibit E as the receipt book the accused brought from his house.

13. On examining Exhibit E he found that none of the receipts in exhibit E was entered in the cash book. The amount in exhibit E not entered in the cash book totalled $1771.82. He asked the accused what happened to this amount. The accused told him that the amount was in his drawer. When he asked the accused to produce the money, the accused gave him $20 in cash and his personal cheques for $1715. He took the cheques and in his report made mention of it. The cheques were made payable to the Government.

14. Under cross examination he told the court that he has had experience in checking cash book many times. All the cheques belonged to the accused. He reported the amount received by the accused but not accounted for.

15. PW5 (Tamarawa Teoiaki) an examiner in the Bank of Kiribati tendered the ledger account of the accused as exhibit 'M'. Under cross examination he said the cheques belonging to the accused was amongst other cheques which she received.

16. The State Advocate then tender the deposition of Peter Illsley the Senior Accountant in the Ministry now retired and living in England. I admitted the deposition as exhibit 'N'.

17. That was the prosecution case.

18. The accused under oath told the court that between 1981 and 1982 he was an acting executive officer in the Ministry of Finance. In 1982 he was transferred to Kiritimati Island as subaccountant in the Ministry of Lines and Phoenix group.

19. His duties consist of paying the wages of employees in both Government and Private sectors. Accepting bank deposits and withdrawals. He reports to the Senior Accountant in the Ministry. PW4 was also a staff in the accounts division.

20. On 26th November 1982 there was an inspection of cash in his custody and this was carried out by PW4. The inspection revealed a cash surplus of $175.43. In December 1982 there was another inspection by PW4 and this revealed another cash surplus of $128.81. PW4 wrote a report and a letter to the Chief Accountant, copied to the Secretary to Line and Phoenix group, and gave him a copy of the letter. This letter was tendered as exhibit 'O'.

21. He acknowledged exhibit 'L' as his own. The missing money was put on his advance account. He is repaying the amount which balance now stands at $1600.

22. Under cross examination he told the court that he started repaying the money in March 1983. He does not know how long it would take him to repay the money in full.

23. DW2 Aako Betaia an assistant accountant in the Ministry of Finance told the court that formerly her duty is to investigate losses of government money. Now she deals with rejected cheques sent from the Bank. The officer whose cheque is returned is informed and his advance account is then debited, and the salary section informed. The salary section then advises a deduction from the salary of the officer.

24. On 2nd March, 1983 there was an advice to deduct from the accused's wages roughly $28.80. This amount was reduced to $15.00 in December 1983.

25. Under cross examination she said that the initial amount the Revenue was to collect from him is $2682.80. The amount now outstanding is $1518.90.

26. That was the accused's defence.

27. Mr Ratieta assisting the accused submitted that strictly speaking cashing a cheque is no offence. He refers to exhibit 'L' and submits that the accused has reduced the amount and that he had no intention to steal the money. He further referred to exhibit 'N' and urged the court not to rely on it, considering the time lapse between the time when the offence was committed and the time exhibit 'N' was made.

28. Mr Hazelton for the Republic submitted that the court should accept PW4 as a reliable and consistent witness and should accept the documents produced. He refers to exhibit 'N' paragraph 4(a) and to exhibit B Q20, 21, 38, 40, 49 and 50 and submits that this is an admission by the accused. He cites the unreported case Republic v Teiwaki Tekanang 1985 in support of the prosecutions case.

29. For the prosecution to succeed in this case it must prove the following elements of the offence.

(a) That the accused at the time the alleged offence was committed was a clerk or servant in the Ministry of Line and Phoenix Groups.

(b) That he stole the alleged sum which belonged to or is in the possession of his employer.

(c) That he fraudulently converted to his own use or benefit the alleged sum which belonged to his employer or which was entrusted to him to retain in safe custody or apply for the purposes of his employer.

30. From the evidence of PW4 (Temari Manoa) and the accused, I find proved as a fact that the accused is a clerk employed by the Ministry of Line and Phoenix. The next question is did the accused steal the sum alleged?

31. S251 of the Penal Code defines stealing as follows:

251 (1) A person steals who without the consent of owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent at the time of such taking, permanently to deprive the owner thereof.

PROVIDED that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof he fraudulently converts the same to his own use of any person other than the owner.

(2)(c) The expression "owner" includes any part owner or person having possession or control of, or a special property in anything capable of being stolen.

The underline mine for emphasis.

32. By the above provisions a person in lawful possession or having control of anything capable of being stolen may be guilty of stealing if he fraudulently converts the same to his own use other than to the owner's use.

33. PW4 (Temari Manoa) told the court that he knew the accused for more than two years as a cashier. The accused admitted this in his evidence and said that as a cashier his duties are, collecting revenues and paying the wages of both government and private enterprise employees. He also accepts Bank deposits and withdrawals.

34. I find as a fact from the nature of his duty that money and valuable securities are delivered to him for and in the name of and on the account of his employer.

35. PW4 (Temari Manoa) also told the court that he checked the accused's cash book and records of money received in November and December 1982 as he was entitled to do by virtue of his office, and found that the cash in the safe did not balance with the record of receipts in the cash book. The accused was the only person who had the key to the safe.

36. On examining exhibit E - the receipts book, he found that none of the amount in the receipts that is in exhibit 'E' was entered in the cash book. The total amount involved was $1771.82.

37. When the accused was asked to account for the sum, he the accused gave him $20 in cash and his personal cheques totalling $1715. The accused admitted this fact in his evidence under oath.

38. The said amount is money entrusted to the accused as shown in exhibits 'D' and 'E' (the Receipt books). Exhibit 'D' contained receipts numbers 64001 to 64172 both numbers included. The receipts show various amount of money which the accused signed as having received on behalf of his employers. Similarly exhibit 'E' numbers 65804 to 65829 show various amount of money which the accused signed as having received on behalf of his employer.

39. I therefore find as a fact that these sums of money received on behalf of his employer belong to his employer, and that he did receive the sums on behalf of his employer.

40. The accused could not account for the sums involved in exhibit 'E'. He admits this, and issued his personal cheques to cover the amount involved. The inference I draw from this is that the accused converted the sum involved to his own use.

41. The question now is was the conversion done fraudulently?

42. PW4 (Temari Manoa) told the court that during his checking, he discovered that the accused was using two receipt books exhibits 'D' and 'E'. Exhibit 'D' was opened on 1st October 1982 and was not closed when the accused opened exhibit 'E' on 27th October. The system of work is to record in the cash book all receipts of sums received.

43. The accused instead of waiting until exhibit D was completed, went and signed for a second receipt book exhibit 'E'. He used this in recording money received but never posted the receipts in the cash book.

44. This in my view, was clearly a fraudulent method of converting money received on behalf of his employer to his own use.

45. I find as a fact that the conversion of the sums involved for his own use was fraudulent.

46. Mr Ratieta on behalf of the accused submitted that the accused had no intention of stealing the money and called evidence to show that the accused is repaying the money by monthly instalment from his salary.

47. That in my view, is not a defence to the charge against him. A person is guilty of stealing if he fraudulently converts to his own use other than to the use of an owner, what is entrusted to him or is held on behalf of an owner.

48. In this case the accused is charged for stealing the sum of $3486.82. The evidence show that the amount stolen as indicated in exhibit 'D' and 'E' is $1771.82. The fact that this amount is less than the amount indicated on the particulars of offence, is not fatal to the prosecution case.

49. The charging section 266(a)(1) provides as follows:

266 Any person who –

(a) being a clerk or servant or person employed in the capacity of a clerk or servant.

(b) steals any chattel, money or valuable security belonging to or in the possession of his master or employer........................

The underlined mine for emphasis.

50. This provision does not talk of a sum of money but any money. It is my view therefore that the fact that the evidence adduced states that $1771.82 was not accounted for, that that should mean that the prosecution has not proved its case beyond reasonable doubt.

51. I am satisfied by the evidence before me that the accused stole money belonging to his employer and I so hold.

52. I convict the accused of larceny by a servant. As to the alternative charge of conversion, this is struck off as the accused is found guilty on the main charge.

The Hon Justice V O Maxwell
CHIEF JUSTICE

30.5.86

ALLOCUTUS: I do not agree with the charge.

Sentence: You are sentenced to one year imprisonment suspended for two years (meaning explained to him). You are to make restitution at the rate of $50 per month.

The Hon Justice V O Maxwell
CHIEF JUSTICE
30.5.86