Republic v Katioua - judgment [2001] KIHC 63; Criminal Case 45 of 2000 (19 October 2001)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Criminal Case 45 of 2000

THE REPUBLIC

vs

TERARA KATIOUA

For the Republic: Mr Tion Nabau
For the Accused: Ms Taoing Taoaba

Date of Hearing: 15 October 2001

JUDGMENT

The accused has been charged with embezzlement contrary to section 266(b)(ii) of the Penal Code. The particulars:-

Terara Katioua, on or between June 1998 and July 1998, whilst employed by Abamakoro Trading Company Limited as a Salesman on North Tarawa island, he fraudulently embezzled the sum of $9,850.26, received by him for or on the account of his employer, Abamakoro Trading Company Limited.

Terara had been the Sales Manager on North Tarawa of the Abamakoro Trading Company since 1996. Part of his duties was to account weekly to head office for the monies taken and send the money, usually by telegraphic transfer, to Betio. Until June 1998 he always did so. Then he fell behind by nearly a month.

The company sent Nei Nuea Teubaitoi, Examiner of Accounts in the Internal Audit Section, to check. With the cooperation of the accused she did so and found a deficiency which at first seemed to be $9,192.26 but which later after some recalculations came out at $9,850.26. Exhibit P1, admitted by consent, is the Cash Count Reconciliation as at 5 July 1998. At the end of the document, on the fifth page is this:-

We the undersigned certify the above cash count and shortage of $9,192.26 is correct.

This note is followed by the signatures of Nei Nuea and of the accused.

In her evidence Nei Nuea said that Terara agreed he was short by the amount stated. He gave her no explanation for the shortage.

Terara gave to Detective Constable Tabuki Temaewe a caution statement in the form of a narrative and a "Question Interview". Both were admitted by consent.

I cannot follow the caution statement. It seems to be explaining adjustments in the total of the shortage. Whatever may be its purpose Terara begins by admitting a shortage. Likewise with the Question Interview: the questions and answers are based on the acceptance of a shortage.

Nowhere in either caution statement or question interview is any explanation why Terara was short.

In summary the Prosecution case was of a shortage of $9,850.26 with no explanation offered.

Terara gave evidence. He admitted that he had never before been behind but in June, July 1998 he fell nearly a month behind. Although he tried in his evidence to explain part of the shortage he offered no explanation for there being a shortage of some amount. My note from his evidence:-

The shortage is far more than can be explained by a few hundred here and there.

Ms Taoaba for the accused submitted that the Prosecution had failed to prove the money had been taken by the accused for his own use.

Yet the absence of any explanation for the shortage is itself strong evidence of fraud.

In this case there is admission of Terara's failure to account to his employer for monies received by him for his employer, with no explanation given as to why.

I am satisfied beyond reasonable doubt that the Prosecution has proved the elements of embezzlement:-

That (1) Terara was the servant of Abamakoro Trading Company

(2) He received $9,850.26 on account of his employer

(3) He failed to account to his employer for it

(4) He acted fraudulently

I find the accused guilty.

Dated the 19th day of October 2001

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE