Republic v Kinta [1996] KIHC 110; HCCrC 13.96 (19 December 1996)

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

HCCrC 13/96

THE REPUBLIC

versus

NATIRIA KINTA

(Larceny by Servant)

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

JUDGMENT

The accused has been charged with Larceny by Servant contrary to section 266(a)(i) of the Penal Code Cap. 67 in that on or about the 8th April 1996, being employed by Atoll Motor Marine Services Ltd as a watchman, he stole money and valuable security worth $6,844.06 belonging to his employer.

Eleven witnesses gave evidence for the prosecution, while the accused elected to remain silent and to call no evidence.

The evidence of the first prosecution witness, Nei Merean Tetaake, recounted the circumstances of the offence. On Monday, 8th April 1996 she was in charge of the store at Betio owned by Atoll Motor Marine Services Ltd (AMMS). It was an Easter weekend. Normally the day's takings would be taken to head office at Bairiki but that office was closed over the Easter weekend so the takings were kept in the store at Betio. The store closed at midday, after which the day's takings were counted and placed in a drawer in Merean's desk. The takings from the previous three days were also in that drawer. The staff then waited around for knock-off time which was 12.30 pm. The other staff were Nikotaake, Angiruru, Naoniman and an unnamed seamstress. The accused, who was the day watchman, came into the store at about midday and walked around the store before it closed. His shift that day was from 12.30 pm to 6.00 pm.

Merean testified that she locked the drawer in her desk containing the takings. Before they all left, the accused locked the back door with a key and a bolt. Merean checked that this door had been locked. She also checked that the door to a small storeroom had been bolted. They all left by the front door at 12.30 pm, including the accused. Merean then locked the front door. She said she had the only key to that door. The key to the back door was left on her desk. Again, there is only one key to the back door according to Merean.

The next day, Tuesday 9th April 1996, Merean opened the store with her front door key around 8.00 am. Another employee, Kawanga, opened the back door with the key which was still on Merean's desk. Not long afterwards she inserted her key in the drawer containing the takings. The drawer would not open. Kawanga came and forced the drawer back into place by hitting it. When the drawer was opened it was discovered that the takings had been stolen.

Merean and the staff examined the store and its windows and doors for any sign of a forced entry but were unable to find one.

In cross-examination she agreed that the procedure of keeping the money in the desk drawer had been in place for a number of years and would have been no secret among the staff. She also agreed that the accused would have finished his shift at 6.00 pm that Monday, at which time two night watchmen, Tiinga and Kaono would take up duty until 8.00 am the next morning.

Merean's evidence goes no further than to establish that the accused might have had the opportunity to commit the crime but then so might other persons.

The second prosecution witness was Kawanga Maio who assembles bicycles and sewing machines at the store. He testified that on the following Saturday (i.e. 13th April) he opened the storeroom and found a number of cheques (subsequent evidence puts the number at 26) in a plastic bag.

His evidence confirmed much of Merean's evidence but did not take the case against the accused any further.

The third prosecution witness was a young person named Tiaon Tauiaong, aged 16, who works at the store assembling bicycles. He gave evidence that on Monday 8th April he was with the accused outside the store during the accused's shift from 12.30 pm to 6.00 pm. He said that during the shift there were three occasions when he left the accused, twice to go home to take a tablet and once to go to buy some food for the accused. On each of these occasions he was absent for about 10 minutes and had to wait another 5 minutes on his return for the accused to open the gate for him.

While Tiaon was there another employee, Raitinkai, came around but left after a while.

Tiaon said that he uses a screwdriver and a spanner to work on the bicycles. He said that the accused borrowed these tools from him, a fact which he later reported to the police. The tools were produced in evidence as Exhibits A and B.

The fact that the accused borrowed a screwdriver and spanner might have had some significance except for the following considerations. Firstly, it is not consistent that a person who is planning to break into his employer's store or into a desk in that store would quite openly borrow the tools to do so from a fellow employee. Next, subsequent evidence failed to conclusively connect either of those tools with the marks shown on the desk drawer. In fact neither tool was ever compared with the marks on the drawer to establish size or shape. Lastly, Tiaon in his evidence confirmed what he had told the police, that is, that it was at 3.00 pm on that day that the accused had borrowed his tools. In his evidence in chief he said that he left to take his first tablet at 1.00 pm. When he returned, he was asked by the accused to buy him some food, which he did. He said that he later left to take his second tablet at 2.00 pm. If what he told the police was correct, it means that the three occasions on which he left the accused alone all took place before the accused borrowed the tools.

The fourth prosecution witness was Nikotaake Aata who was the shopkeeper at the store at the time of the theft. She gave evidence of the procedure used to count the takings and prepare a summary before placing the takings in the drawer. She gave the impression that she did not fully understand this procedure. She also said that Merean locked the money in the first drawer of her desk, whereas Merean was quite certain that the money was always kept in the second drawer. The evidence of this witness did not go any closer to linking the accused with the theft.

The fifth prosecution witness was Raitinkai Tewei who was also working at AMMS at the time. He said that when he went to the store on Monday 8th April at 6.00 pm he saw the accused leaving work and carrying something that looked like plastic but he was not sure. In cross-examination he conceded that although he thinks the accused was carrying something he is not sure. There is certainly nothing compelling about this sort of evidence.

The sixth prosecution witness was Baati Taam, a police officer. He testified that on the Friday following the theft he was drinking in a bar with another policeman when the accused came to their table and left them four cans of beer. No doubt this evidence is intended to show that the accused had suddenly come into a large amount of money which enabled him to afford extravagant gestures. However, according to the witness, the value of the beer given by the accused was $5.20. The witness did not say whether he and his companion were friendly with the accused; nor did he say either that what the accused had done was out of character or that it was consistent with his usual conduct. No inferences can be drawn from this evidence.

The next witness, Baiteke Tokoru was called to give similar evidence. He told of the accused joining him and a friend at a night spot. The witness brought a few beers, the lady with him bought a few beers and the accused bought a few beers. The witness was very vague as to the number. He thought that the accused bought more than 10 beers. He himself spent $20.00 on beer and the lady with him also bought beers. Next morning they went to a store and each drank one beer. The witness did not know whether the accused or the lady bought these beers. From there they went to another bar where he thinks the accused may have bought some beers but it could have been the lady. Once again there was nothing to show that what the accused did was anything out of the ordinary. Looking at this evidence alongside that of the previous witness I am unable to come to the conclusion that the spending of the accused was of such an inordinate nature that he must have suddenly become wealthy.

The eighth prosecution witness was Taubuki Tebau, a detective corporal. He examined the second drawer of Merean's desk and concluded that it had been forced with a knife or screwdriver. Incredibly, he did not compare the screwdriver given to the police (Ex. A) with the marks on the desk. This evidence is not conclusive that it was even a screwdriver which was used to force the drawer.

This witness also testified that when he searched the store for signs of a break-in, all he found was a new nail on the wall to which the door on the ocean side was attached. The significance of this nail was not explained.

The ninth prosecution witness was Naoniman Kookia, the employee who clears the cash registers. She gave evidence only of the procedure involved and none of that evidence in any way implicated the accused.

Prosecution witness No. 10 was Detective Constable Moulongo Kiaua who investigated the complaint. He searched the store for means of entry and found a 3-foot gap between the wall and the roof of the bathroom. In his opinion the gap was big enough to admit a large man. I find it strange that none of the other persons who searched the store considered this gap to be a likely means of entry. Nevertheless, I accept that someone could have entered the store in that way.

Detective Moulongo also inspected the markings on the drawer of Merean's desk and came to the conclusion that it had been forced by using a piece of metal. However, it appears that he inspected the wrong drawer. There is no doubt that the money was kept in the second drawer, but the witness said that the drawer which he inspected was the very top drawer, i.e. the first drawer. He said that someone on the staff at AMMS had told him that that was the drawer which contained the money. That person was probably Nikotaake, the fourth prosecution witness.

The detective also searched the house of the accused and found in a suitcase the sum of $44.50. There is certainly nothing incriminating about this. I would imagine that the accused is not the first person to keep his spare cash in a suitcase. And $44.50 is a long way short of the $4,555.88 in cash that was allegedly stolen.

The eleventh and last witness was Tiinga Itinnaba, the nightwatchman on the shift from 6.00 pm to 8.00 am. He testified that when he arrived at the store to commence his shift at 6.00 pm on Monday 8th April the accused and Tiaon were just leaving. He did not see the accused carrying anything. The witness was working with a second watchman, Kaono, whose shift was from 7.00 pm to 7.00 am and the witness agreed in cross-examination that there were periods at the beginning and end of his shift in which he was alone.

That was the case for the prosecution.

Having considered all of the evidence I am quite satisfied that the prosecution have proved that money and cheques were stolen from AMMS's store. The prosecution have also proved that the accused was one of a number of persons who had an opportunity to steal that property. The evidence does, however, fail to eliminate other possibilities. Some of those possibilities are:

1. That it was an inside job. That the money was removed before the store was even closed.
   
2. That someone else had a key to the front door.
   
3. That someone had taken Merean's key, opened the front door with it and replaced it before she needed it the next morning.
   
4. That someone had climbed through the gap in the bathroom wall described by Det. Moulongo.
   

There are several other obvious possibilities. In my view, the highest that the prosecution evidence can be put is that it casts some suspicion upon the accused. However, the same suspicion can also be cast upon other staff members. And, as I have said the possibility has not been excluded that the thief was someone not connected with AMMS at all. In other words, a consideration of the whole of the evidence does not lead to any inescapable inference. There is no common link which brings the evidence together into a strong case from which the only reasonable conclusion points to the guilt of the accused.

It is trite to say that the onus of proof beyond reasonable doubt remains upon the prosecution from first to last. The prosecution's onus is to prove the charge and each element of the charge beyond reasonable doubt and if it fails to do so then the accused is entitled to be acquitted.

I find that the prosecution have not satisfied that onus in the present case. I therefore find the accused not guilty of the charge of Larceny by Servant contrary to section 266(a)(i) of the Penal Code and he is accordingly acquitted.

THE HON R B LUSSICK
CHIEF JUSTICE
(19/12/96)