Republic v Atera - judgment [2002] KIHC 80; Criminal Case 36 of 2001 (23 July 2002)

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

High Court Criminal Case 36 /2001

THE REPUBLIC

vs

TENEA ATERA

For the Republic: Ms Pauline Beiatau/Ms Ruria Iteraera
For the Accused: Ms Emma Hibling

Date of Hearing: 22 & 23 July 2002

JUDGMENT

The accused was originally charged with four counts, two of larceny and two of fraudulent falsification of accounts. The prosecution did not proceed with the second of the counts of fraudulent falsification. The trial proceeded on the first three counts:-

Count 1

Statement of Offence

Larceny contrary to section 266(a)(i) of the Penal Code Cap. 67

Particulars of Offence

Tenea Atera, on a day unknown during the month of March 2999, at Bairiki, Tarawa whilst being employed by the Kiribati Housing Corporation stole money from the said Corporation in the amount of $747.50.

Count 2

Statement of Offence

Larceny contrary to section 266(a)(i) of the Penal Code Cap. 67

Particulars of Offence

Tenea Atera, on a day unknown between the month of June and July 1999, at Bairiki, Tarawa whilst being employed by the Kiribati Housing Corporation stole money from the said Corporation in the amount of $235.15.

Count 3

Statement of Offence

Fraudulent Falsification of accounts contrary to section 29(1) of the Penal Code Cap. 67

Particulars of Offence

Tenea Atera during the month of November 1998, at Bairiki, Tarawa whilst being employed by the Kiribati Housing Corporation, willfully and with intent to defraud, made false entry in the account of Manuia Eritai, a customer of the Kiribati Housing Corporation, by increasing the loan of the said customer’s in the amount of $747.50 without her knowledge.

In 1999 Lawrence Muller, then the Lending Supervisor for the Kiribati Housing Corporation was on study leave. The accused was acting in his place.

Nei Manuia Eritai had two loans from the Corporation. By the end of 1999 they should, according to her calculations, have been fully repaid. Yet deductions of $100 per month were still being made from her salary. With her husband, Atantaake Iaokiri, she called at the Corporation to enquire. When shewn her ledger cards she identified two transactions which she had not authorized and knew nothing about. One was for $747.50 on 18 March 1999 and the other was for $235.15 on 18 June 1999. They are the amounts the subject of the counts.

The prosecution case was that the accused had wrongly raised two amounts on Manuia’s account, drawn Housing Corporation cheques, one (for $747.50) in favour of the Kiribati Supplies Ltd and the other (for $235.15) in favour of the Betio Shipyard, had taken cheques to the companies respectively and cashed them for his own purposes.

There was evidence of the cashing of the cheque at Kiribati Supply in Bairiki but no identification as to who presented it for cashing. There was evidence, from witnesses whom I accept as truthful and accurate, that the accused presented a cheque at the Shipyard at about the time the cheque for $235.15 was drawn (18 June 1999) or not long after. First of these witnesses was Nei Kataua Tirae, an employee of the Shipyard who dealt with company debtors. She knew the accused: she saw him at the Shipyard “about June or July” 1999:

He brought a cheque and asked me to change it into cash. In favour of Betio Shipyard and for about $200.00. The Housing Corporation was drawer. He asked me to change it into cash: the cheque belonged to a customer: he was trying to help his customer. Told him no problem and sent him to cashier but he asked me to go instead. Cashed it for full amount of cheque and gave him the money.

The accused did not purchase goods.

Her evidence was to an extent corroborated by the cashier, Nei Bwone Elisaia who, at Kataua’s request, gave cash for a Housing Corporation cheque for “$200 something”. Bwone could not remember the exact date but thought it might have been the second half of June 1999.

Ms Hibling both in submitting that there was no case to answer on count 2 and in her final submissions, made much of the witness’ uncertainty as to the exact amount of the cheque and the exact date of the transaction. She pointed out that the accused himself was a customer of the Shipyard. It is very strong evidence against her client – a cheque for about the amount, presented by him for cash at about the time the cheque for $235.15 was drawn. It all fits pretty well: it would be an extraordinary coincidence if the accused had at about that time obtained cash at the Shipyard on his own account for about the same amount.

Perhaps had this evidence stood alone I may have had a doubt but it does not stand alone.

When he came back from study leave Lawrence Muller had to deal with the matter. He spoke to the accused:-

Tenea Atera ------ admitted he took the cheques: should transfer amounts from this customer’s account to his own account: I asked him why: under pressure from people of North Tarawa.

Unfortunately Lawrence was not specific in his evidence as to the cheques the accused admitted taking although in cross examination he said the accused admitted taking “those cheques” by which I take Lawrence meant the cheques for $747.50 and $235.15.

Atantaake Iaokiri is the husband of Nei Manuia. The accused whom he did not know, approached him twice to apologise. He thought first about January 2000 and then last Friday, 19 July.

Saw him outside KPC at Bikenibeu. Came up to me: apologizing – told me been using our loan account for another KPC group: also asked if I could withdraw case: ready to lend me some money. My wife’s loan, KPC TabSouth from Housing. Accused came to me last Friday – apologized again looking for assistance in Court: regarding our loan. Asked me to go back to Housing to withdraw case.

In cross examination Atantaake reinforced his evidence of the second occasion:

Last Friday after 1400 did apologise: asked me to give some help to him in court.

Why should the accused apologise to Atantaake if he had done no wrong to Manuia? Ms Hibling submitted in her final address that her client, a senior officer of Housing, was apologizing on behalf of his employer: mistakes do happen in accounting. I do not accept the submission. In cross examination Atantaake had also said, “he apologized personally”. I find that his apologies are strong evidence that the accused knew he had done wrong.

When the Republic closed its case, Ms Hibling submitted that her client had no case to answer on any count. I was with her on count 1: there was no evidence that it was the accused who had cashed the cheque at Supply: a link was missing in the chain of necessary proof beyond reasonable doubt of the prosecution case. It followed almost automatically that count 3 fell with count 1 but as well Ms Hibling reminded me another Housing Corporation employee, Jason, had made the entry in the ledger.

I found no case to answer on counts 1 and 3.

It was otherwise with count 2. The accused had cashed a cheque for about the amount and at about the time of the drawing of the cheque for $235.15.

I found a case to answer on count 2.

The accused did not give evidence nor call any witness in his defence.

In her final address Ms Hibling again emphasized the uncertainty about the precise amount of the cheque and the date a cheque was cashed at the Shipyard. She argued to explain away the apologies to Atantaake.

Ms Beiatau submitted that there was a strong inference in the apologies. She reminded me of what the accused had said in his statement to the police (exhibit P1) especially his answer to question 41. Question 41 asked why the accused had raised Manuia’s loan balance? The reply:- “A missionary came and brought the letter from Manuia. The letter was for the building materials that she needed that was why I gave authority for that order to be arranged”. Ms Beiatau argued persuasively that one would have expected the accused to have made some mention of this when he spoke to Atantaake: it was an explanation of why he had done what he did: yet he did not give it.

Ms Beiatau referred to the accused’s admission to Lawrence Muller.

On the whole of the evidence, I have no reasonable doubt that the accused took the money, $235.15, from his employer and used it for his own purposes, all in the way I have described.

The accused is guilty on count 2.

Dated the day of July 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE