Republic v Teken [1996] KIHC 106; HCCrC 14.95 (27 November 1996)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrC 14/95

THE REPUBLIC

versus

TENGUTU TEKEN

(Obtaining Money by False Pretences)

Ms T Beero for the Republic
Mr D Lambourne for the Accused

JUDGMENT

Earlier today I found the accused not guilty of the two charges which follow and she was acquitted accordingly. I indicated that I would give my reasons later. Here are those reasons.

The charges were:

Count 1

OBTAINING MONEY BY FALSE PRETENCES contrary to section 301(a) of the Penal Code (Cap 67).

TENGUTU TEKEN on or about the 31st January 1994 by a false pretence to wit presented a cheque No. 894261 signed by Teem Teangauba authorising the accused to cash that cheque on his behalf, with intent to defraud obtained from bank teller Iaokabu Barantarawa money namely $8,824.16.

Count 2

FORGERY contrary to section 329(1)(c) of the Penal Code (Cap. 67).

TENGUTU TEKEN on or about the 31st January 1994 forged an endorsement on the back of a bank note namely Teem on the back of cheque No. 894261 with intent to defraud.

In January of 1994 the accused, then the withdrawals clerk at the National Provident Fund, processed an application purportedly made by one Teem Teangauba to withdraw the full amount standing to his credit in the Fund. The application bore the signature "Teem" and a right thumbprint as proof of identity. The accused raised a payment voucher and took it together with certain supporting documentation to another officer who, apparently satisfied that all was in order, checked the voucher and authorised payment on behalf of the Accountant. The manager and a Board member also signed as having approved payment.

The accused then prepared a cheque in the name of Teem Teangaua (a misspelling) for $8,824,16. She took it to the Bank of Kiribati where the teller checked that Teem had signed the back of the cheque and then paid the money to the accused. The accused signed her name on the back of the cheque in acknowledgment of receipt. The teller knew the accused very well, her having known her for about 10 years.

What was unknown when the payment voucher was approved was that Teem Teangauba had already withdrawn his money from the Fund. An earlier payment voucher had been raised in August 1993 and Teem had been paid the sum of $7,426.03. However, this withdrawal had not been posted to Teem's ledger card, nor was there any note of it on the ledger card. This was not the responsibility of the accused but of another withdrawals clerk who had raised the earlier payment voucher. There was also a withdrawals register which enables the postings clerk to double-check withdrawals. Entry in this register was also the responsibility of the withdrawals clerk processing the earlier withdrawal.

In June of 1994 the Assistant Accountant was going through the accused's desk drawers when she found the payment voucher for the second payment. She noticed that the applicant had apparently picked up his cheque without signing or leaving his thumbprint on a copy of the payment voucher. The procedure was that a cheque would not be handed over until this was done. The Assistant Accountant then checked the ledger card and discovered the earlier withdrawal in August 1993.

The accused was questioned by the manager later the same day. Not long after that, the manager noticed that a payment voucher was missing from his office. The manager said in evidence that it was the payment voucher for the second withdrawal. However, the Assistant Accountant who found it in the accused's bag said it was the payment voucher for the first withdrawal. Since she was the one who found it I accept her evidence that it was the payment voucher for the first withdrawal. I can see nothing to be gained by the accused deliberately taking that voucher as she had nothing to do with raising it. However, according to the Assistant Accountant, the accused had tried to snatch the voucher back, implying that such an action raised suspicion that she had deliberately taken it. That, of course, is one explanation. Another is that the accused might object to people taking things out of her bag. Yet another was recognised by the Assistant Accountant herself. The manager had given the accused an unrelated payment voucher which could have been mixed up with the voucher in question and it was this unrelated voucher that the accused thought she was retrieving. I must say I do not place much significance on this incident as going to the question of guilt.

The accused was questioned by the police in August 1994 and she gave a statement in which she said that a person by the name of Teem Teangaua had come to the office to withdraw his money. She looked at his ledger card and there was no note of an earlier withdrawal. She then asked him for his birth certificate which he gave her. She told him to return the next day for the cheque. When he did so she told him she would have to get the cheque signed by a Board member. He said he was in a hurry so she arranged to meet him at the market near the Bank. Her intention was to go with him to the Bank to collect his money and then take him back to the office so that he could sign and put his thumbprint on the payment voucher. At the bank this person asked the accused to collect the money for him. She did this and counted it out to him. When she returned to the office she realised that she had forgotten to bring him back to sign and put his thumbprint on the payment voucher. She went back to the bank but he had left.

The prosecution evidence does not exclude the possibility that the accused's explanation could be true.

The National Provident Fund leaves itself open to fraud of this kind by the procedure it adopts for processing withdrawals. In the present case, although withdrawal of a substantial amount of money had taken place in August 1993, that transaction had still not been posted on the ledger card when the second withdrawal was applied for more than five months later. Also, perhaps the most important safety check of the withdrawal procedure, i.e. confirmation of the identity of the Fund member, is made the sole responsibility of the most junior officer in the system, the withdrawals clerk. From the evidence I have heard, confirmation of identity is resolved simply by comparing the signature on the application with the signature on the original registration form. I do not think a comparison of thumbprints would be of any use except in the unlikely event of the withdrawals clerk having specialist fingerprint training. In the present case there was no thumbprint on the registration form because Teem joined the Fund before such a requirement was necessary.

Teem Teangauba gave evidence that the signature on his registration form was not his. He also testified that although he signed and put his thumb print on the application for the first withdrawal in August 1993, the signature and the thumbprint appearing on the copy of the payment voucher were not his. He also said that the signature and thumbprint on the application for the second withdrawal in January 1994 were not his. As regards the registration form and first withdrawal he changed his mind later in his evidence and said that they could be his but he was not sure. It was clear to me that Teem cannot tell his own signature when he sees it. I might add that although the signatures on the first and second withdrawal applications are somewhat similar, neither of them is anything like the signature on the registration form.

Teem said in his evidence that after receiving his money from the withdrawal in August 1993 he never returned to KPF. That is as far as his evidence went. He was asked nothing at all about the second withdrawal. Although he said he did not return to KPF after the first withdrawal he was not asked whether he had authorised someone else to make a withdrawal on his behalf. Nor was he asked whether he had ever gone to the Bank of Kiribati with the accused. He was not shown cheque No. 894261 and was not asked whether or not the signature which appeared on the back of it was his.

Furthermore, there was no evidence at all that the handwriting on the second withdrawal application and on the back of the cheque could have been that of the accused. Similarly, no attempt was made to compare the thumbprint on the second application with the thumbprint of the accused, or of Teem, or of anyone else working at NPF.

There are other considerations inconsistent with guilt. The payment voucher for the withdrawal in issue was not found in the accused's desk drawer until some five months after the transaction had been completed. She therefore had ample time to affix a signature and thumbprint to the payment voucher and file it away but she did not do so. Also, if she was knowingly engaged in an illegal activity she would hardly go to a bank teller who had known her for ten years and then, having obtained the money, stay in the bank to count it. Again, if she was going to copy Teem's signature from the registration form it would not have been difficult to come up with a better likeness than the ones appearing on the withdrawal application and cheque. Finally, police conducted a search of the accused's bank account and the bank accounts of her family and were unable to find evidence of any suspicious and unexplained deposits.

On a consideration of all the evidence I find that the prosecution have failed to prove beyond reasonable doubt that the accused forged Teem's signature on the back of the cheque or that she presented that cheque at the Bank with intent to defraud. I therefore find the accused not guilty of the charges of obtaining money by false pretences and forgery and she is acquitted accordingly.

I should also add that I reject another argument put to me by Counsel for the accused that a cheque is not a "bank note" as defined in section 325(1) of the Penal Code Cap. 67.

THE HON R B LUSSICK
CHIEF JUSTICE
(27/11/96)