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High Court of Kiribati |
IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI
High Court Criminal Case No. 50 of 2004
THE REPUBLIC
vs
URIAM TEITIKAI
For the Republic: Ms Ruria Iteraera
For the Accused: Ms Jennifer Troup
Date of Hearing: 7 & 8 July 2004
JUDGMENT
The accused Uriam Teitikai had been charged as follows:
Count 1
Statement of Offence
Theft contrary to section 251 of the Penal Code (Cap. 67)
Particulars of Offence
On or about 22 November 2001 Uriam Teitikai at Antebuka, South Tarawa stole $351.75, owned by the Kiribati Protestant Church.
Count 2
Statement of Offence
Theft contrary to section 251 of the Penal Code (Cap. 67)
Particulars of Offence
On or about 29 November 2001 Uriam Teitikai, at Antebuka, South Tarawa stole $1,000 owned by the Kiribati Protestant Church.
In order to prove its case the prosecution called four witnesses but before calling its first witness counsel for the prosecution Ms Ruria Iteraera applied to the court on behalf of the Republic and the defence to have the following documents formally admitted without any further proof under section 126A of the Criminal Procedure Code (Cap. 17):
For Count 1
For Count 2
The above documents were then formally admitted accordingly.
The first prosecution witness is Rev Reenata Noa (PW1) who is the Financial Secretary of the Kiribati Protestant Church (KPC) Headquarters, Antebuka, South Tarawa. One of his duties is to report to the KPC Executive Council on the general finance of the KPC and to prepare financial accounts and statements and the flow of funds to the church as such. He said also that he has been in this post for four years.
He testified that there are a number of groups or sections in the KPC for example there is the Youth section called Youth Evangelists Sunday School; there is also the women’s group called RAK and so on. In each section there is a head called the Coordinator and there is also a cashier who is responsible for collecting, receiving, issuing receipt for any moneys received or paid out of each of the sections. When moneys are paid to such sections such moneys are usually sent to the Coordinator of the sections who in turn instructs the cashier to either collect the money and then issue a receipt immediately upon receipt for such money or pay money and also issue receipt for it. In other words all moneys paid into or paid out of any such sections must be accompanied with a receipt immediately upon payment into or payment out of such sections. The witness further testified that in November 2001 Nei Terauongo was the cashier of YESS. However she was temporarily absent from duties at YESS centre as she was on other duties at Onotoa Island.
The witness said that although normally when the cashier is away from duties at YESS centre another person should be appointed by the Financial Secretary to temporarily take his/her place till he/she returns and in the case of Nei Terauongo’s absence from duties of YESS centre, the Financial Secretary didn’t appoint another temporary person to act as cashier while Terauongo was away at Onotoa because the witness didn’t know when Terauongo did in fact left YESS centre for Onotoa as he wasn’t informed about it. Although it is the common practice that the witness should have been informed about it as Financial Secretary of KPC. However instead of him (Financial Secretary) appointing another person acting as cashier for YESS in the absence of the substantial holder of the cashier post Terauongo, the accused himself appointed Betero Bebeia to act as cashier for YESS centre.
The witness further testified that audit of YESS centre was carried out in November 2001 but no financial loss to YESS centre was detected in such audit report as original documents relating to the finance of YESS for that year could not be found and thus the Executive Council of KPC advised that further investigation be carried out. And it was only after receipt of 2002 Audit Report by the Executive Council that financial loss to YESS centre in 2001 was detected.
The witness testified also that when money is sent to any section like YESS centre such money must be receipted first before it could be used or spent.
The witness also said that the Coordinator of YESS the accused Uriam and Betero are not qualified accountants nor trained in financial administration or management. However despite all this they should be able to do their work by using their common sense or sought assistance from KPC trained financial personnel of Finance section.
The witness further testified that the Executive Council of KPC knew nothing at all about the donations of Ministry of Environment and Social Welfare of $2,870 to YESS to assist with the cost of running of the Youth workshop especially catering which was held in November 2001. However out of the amount of $2,870 to which was donated to YESS centre by the Ministry of Environment and Social Welfare only $1,870 was shown on YESS’s account to have been received by YESS but the Executive Council didn’t know the source of such funding.
The second prosecution witness is Nei Terauongo Beneteri (PW2). She is the cashier of YESS centre and had been as such since 1999 or for about five years.
She testified that as a cashier of YESS centre she receives and collects money on behalf of YESS and issues receipts for all money received or paid out by YESS.
When she travels or leaves YESS centre she has to inform the Financial section of KPC about it, although sometimes she didn’t inform the Financial section about her travel out of YESS especially if the Coordinator (the accused) advised her to hand over things to another person. In November 2001 she left the office for Onotoa and handed the financial matters of the YESS office to Betero Bebeia (PW4).
The third prosecution witness is Kaitiro Moanibong (PW3). She is a programme officer of YESS and she has to travel to outer islands of Kiribati from time to time as part of her work as a programme officer of YESS centre. She testified that in September 2001, she went to Tabuaeran Island in the Line Islands to preach the word of god. At Tabuaeran she met up with Pastor Metutera who is the KPC pastor of Tabuaeran and adviser to KPC youth on Tabuaeran.
In her capacity as youth programme officer when any financial collection or contributions are made by any YESS branch on outer island to YESS centre at Antebuka and the witness is on that island the witness could either take back with her such donations or contributions to YESS centre at Antebuka or sent such moneys by telegram – money-order (or Telmo).
Whilst at Tabuaeran the witness recalled having sent to YESS centre, Antebuka contributions of and collections made by YESS branch at Tabuaeran, by Telmo on 25 October 2001 to the accused. Before she sent the money the witness spoke with the accused first over the telephone as to whom she should send such contributions and the accused advised her to sent it to him. So she sent it to the accused by Telmo and the amount is $2,242.20. About a week later the witness spoke again with the accused over the telephone and asked him whether he had received the money and the accused told her that the cashier Terauongo had received the money.
By the year 2002 the witness had by then returned to YESS centre at KPC Headquarters, Antebuka. In April 2002 she met up with Pastor Metutera at Antebuka who was the pastor at Tabuaeran when the witness visited Tabuaeran in September 2001. During her meeting with pastor Metutera, Pastor Metutera informed her that the youth’s contribution from Tabuaeran which the witness sent from Tabuaeran to YESS centre, Antebuka last year was short. The witness then checked and confirmed with the cashier that the amount she originally sent from Tabuaeran of $2,242.20 was written in her cash book and the amount of $1,910.45 was written on the receipt book. So there was a shortage of $331.75.
The last prosecution witness is Betero Bebeia (PW4).
He is the assistant coordinator of YESS centre at Antebuka.
In November 2001 the YESS centre cashier was away and so the accused appointed the witness to act as a cashier for the time being collecting and paying money out on behalf of YESS centre. The witness was shown Exhibit P No. 3 and confirmed that when he was acting as cashier he received the money from the accused in the sum of $1,910.45; he also issued the receipt for it and signed it himself which is Exhibit P No. 3. On the face of such receipt it was stated that the money was sent by Telmo to Uriam (accused) from YESS Tabuaeran dated 31/10/01. The date of receipt when issued is 22/11/01, and the receipt was numbered 021275. The witness said he didn’t know how much money was sent to YESS centre, Antebuka from Tabuaeran YESS branch.
The witness further testified that the accused authorised him to cash the cheque from the Ministry of Environment and Social Welfare in the sum of $2,870 (Exhibit P No. 5). This cheque was given to YESS Coordinator – Uriam Rabati (the accused) also known as Teitikai to assist YESS for the running costs of the Youth workshop which was held in November 2001. The witness said that after he cashed the cheque he took all the money to the accused and the accused gave him $1,870 the receipt of which he issued on 29 November 2001. The witness did this two days after he cashed the cheque (Exhibit P No. 6).
The witness also stated that Commercial and vocational Centre (CVA) KPC, Antebuka who were doing the catering for the November workshop had asked YESS to assist them financially with the catering cost of the workshop and the witness said that he had paid some of the money from the donation of Ministry of Environment and Social Welfare towards the catering cost of that workshop. He however didn’t get receipt for such expenditure from CVC. However he clearly remembered having given about $60 for some employees of CVC who had worked and stayed after working hours. Apart from this sum the witness couldn’t remember having spent some other sums on CVC.
That concluded the case for the prosecution. The accused however elected to give evidence and call evidence.
Uriam Teitikai Robati (the accused). He was once the Coordinator of the Youth Evangelists Sunday School (YESS). He looks after the KPC’s youth as whole in Kiribati. Apart from him there are three other staff of YESS with whom he worked. One of them is the cashier.
In November 2001 the cashier was away from the YESS centre and as the result the accused had to do the work of the cashier especially collecting moneys for YESS.
So when money was sent to the accused for YESS centre at Antebuka from YESS branch at Tabuaeran on 22 November 2001 the accused himself had to collect the money from the post office and signed it (Exhibit P No. 1). After he collected such money he handed it over to Betero (PW4) (see also Exhibit No. 3) including expenditure and cash statements together with the receipt relating to this Tabuaeran contribution to YESS centre.
However he stated that he couldn’t recollect as how much Tabuaeran YESS branch’s contribution to YESS centre was and how much of such contribution he gave to Betero (PW4).
The accused also testified that in November 2001 YESS centre received funding assistance from the Ministry of Environment and Social Welfare in the sum of $2,870 which was to be used by YESS for the provision of meals and refreshments for those youths attending the workshop which was being organised by YESS centre in November 2001.
The accused said he signed the payment voucher and gave the cheque to Betero (PW4) to cash it and pay up for what was required for the workshop.
The accused also stated that he never stole any money from KPC and was dismissed from KPC in June 2002 and thus he didn’t know about $1,000 which was missing from the Ministry of Environment and Social Welfare’s funding of $2,870.
The accused when cross examined stated the Secretary of Finance of KPC is not his immediate superior but the Secretary of the Commission is.
He also said that financial matters like issuing receipts or collecting money for any section of KPC including YESS are normally dealt with or handled by the cashier of a section but on 31 October 2001 he himself collected Tabuaeran YESS branch Telmo from the post office as it was addressed to him personally.
He also said in cross examination that after he collected the Telmo he couldn’t remember as to whom he gave the Telmo but perhaps it was Betero (PW4). Again in cross examination he confirmed that when money is received it must be given to the cashier. However he denied that he has to ask for help from the Finance section if the cashier is away or not available. He also confirmed in cross examination that he had collected the Telmo for $2,480.10 from Tabuaeran from the post office but has forgotten as how long he has kept it before the handed over the money to the cashier.
In cross examination he also said he didn’t receipt all the money he had received as the cashier was there and thus there was no need for him to do so.
The accused also stated in cross examination that he has lost all the receipts and cash statements from his office after he was dismissed in June 2002.
The accused also stated in cross examination that he knew that the cashier was to be away from YESS in November but he denied that he had to inform the Finance office about it. The accused also confirmed in cross examination that he didn’t ask for help from the Finance office when the cashier was away as YESS office had always been able to manage when this happens and it is the common practice before the accused took over.
The accused further confirmed in cross examination that he had received a cheque in the sum of $2,870 from the Ministry of Environment and Social Welfare but denied having had ever received any cash in the sum of $2,870 from Betero (PW4). The accused however confirmed again in cross examination that Betero had made payments to Commercial and Vocational Centre (CVC).
The only witness called by the defence is Meme Tavit. She testified that she is a cashier at Commercial and Vocational Centre (CVC) and in April 2001 she was a cashier of CVC. She said she knew the accused as he was once the coordinator of the YESS. She also remembered a workshop having been organised by YESS and held at Antebuka and CVC was catering for it. However she said that as cashier for CVC she couldn’t recall having received any catering payment of money from YESS in respect of the workshop.
The witness was then shown Exhibit D1 and DIA on which there are seven receipts of payment altogether issued by CVC. Out of these seven receipts she recognised one Receipt No. 24601 as being the one she had issued. However she said she hadn’t received any money for it. And the sum of $3,900 which is written on it has been paid to another section but not CVC.
In cross examination the witness said she had issued the cheque to the accused because the accused had asked her two or three times to issue to him that cheque but she hasn’t received any money for it nor had she seen the number of receipts which made up the sum of $3,900 as shown on receipt 24601.
That concluded the case for the defence. I then heard closing speeches by counsel for the Republic by Ms R Iteraera and counsel for the defence Ms J Troup. Counsel for the Republic – Ms Iteraera submits that the prosecution has proved beyond reasonable doubt all the elements of the offence of theft namely that the accused:-
- without the consent of the owner fraudulently 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.
Counsel for the defence on the other hand submits that the prosecution has failed to prove beyond reasonable doubt all the above elements of the offence of theft.
Before addressing the issues I direct myself that the onus of proof beyond reasonable doubt remains upon the prosecution from first to last. The Republic must 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.
The prosecution had called four witnesses to prove its case. I have carefully listened to each one of them and each one of them had impressed me as being reliable and truthful. Under cross examination all these prosecution witnesses had been consistent and unshaken in their evidence and I accept their evidence.
There are two counts of theft in respect of which the accused had been charged. The issues therefore are whether the accused:
(a) On 22 November 2001 stole $331.75 which is owned by Kiribati Protestant church; (count 1) and
(b) On 29 November 2001 stole $1,000 which is owned by the Protestant Church (Count 2).
As regards to Count 1 or the alleged theft of $331.75 by the accused it is an indisputable fact that the alleged stolen sum of $331.75 was part of the Tabuaeran YESS branch contribution to KPC YESS Centre, Antebuka of $2,242.20 which was sent by Telmo by Nei Kaitiro Moanibong (PW3) from Tabuaeran to the accused on 25 October 2001 to the accused. That the accused collected that Telmo on 31 October 2001 from Bairiki post office (Exhibit P No. 1) and kept it in his possession to himself for 22 days when he eventually handed it over to the YESS centre cashier Antebuka (Exhibit P No. 3). And instead of presenting to the cashier the full original amount of Tabuaeran YESS branch contribution of $2,242.20 the accused presented to the cashier in cash the sum of $1,910.45 (Exhibit No. 3). Hence a shortage of $331.75.
When the accused presented the sum of $1,910.45 he didn’t tell nor explain to the cashier that that amount of $1,910.45 was short by $331.75 from the original Telmo. According to the cashier at that time (PW4) he received that amount of cash from the accused and he (PW4) issued the receipt for that amount without any idea at all as how much contribution Tabuaeran YESS branch had sent to the accused by Telmo in the first place. Nei Kaitiro (PW3) also confirmed in her evidence that the amount of the Telmo from Tabuaeran to the accused was $2,242.20 and she confirmed that she had seen this amount to have been entered in the cash book of YESS centre at Antebuka when she checked it with the cashier. Also Exhibit P No. 2 confirmed that such amount had been sent by way of Telmo from Tabuaeran post office to the accused. The accused himself stated that he couldn’t recall the exact amount of contribution which the Tabuaeran YESS branch sent through telmo.
So tracing the movements and whereabout of the Tabuaeran KPC YESS branch contribution to the YESS centre of $2,242.20 since its transmission by Kaitiro (PW3) by means of telmo from Tabuaeran post office to Bairiki post office on 25 October 2001, and then the collection by the accused himself of such telmo at Bairiki post office on 31 October 2001 (Exhibit P No. 1) and then the presentation or handing over of such telmo to the then cashier at the YESS centre (Exhibit P No. 3) as was the accepted and common practice amongst the KPC sections at Antebuka (PW1 and PW2) when money is being received by any sections of KPC, Antebuka, I am satisfied beyond doubt that the accused, and the accused alone had been so far the only person who had been involved in the handling of the Tabuaeran YESS branch contribution without any other person intervening or interfering in any way. The accused alone had kept that telmo for 22 days since he received it on 30 October 2001. And the only time when the accused parted with that telmo was on 22 November 2001 when he handed over to the cashier (PW4) as required under KPC YESS centre and section practice. And what he presented was not the original amount of the telmo of $2,242.20 but $1,910.45 which is short from the original telmo by $331.75.
Taking therefore into account the whole of the evidence together I am satisfied beyond reasonable doubt that the accused is guilty of theft under count 1 and I convict him accordingly.
The next point to consider is that of Count 2 which relates to the alleged theft by the accused of $1,000. This alleged sum was part of the original donations or funding from the Ministry of Environment and Social Welfare of $2,870 to assist YESS centre with cost of running a Youth workshop like catering etc. which was being held in November 2001.
The sum of $2,870 came in a form of government cheque sent to the then Coordinator of YESS centre, Antebuka – Uriam Teitikai (the accused). The accused in his evidence said he signed the Payment Voucher (Exhibit P No. 4) and collected the cheque (Exhibit P No. 5). Betero (PW4) in his evidence confirms the accused gave him the cheque and he (Betero) cashed the cheque and after he cashed it he took all money back to the accused and the accused gave him in cash $1,870 of which receipt he issued to the accused (P No. 3). Betero issued this receipt two days after he cashed the cheque and he didn’t explain the delay and he couldn’t say why he had receipted a lesser amount than the original amount of the cheque he had cashed. Betero also testified that Commercial and Vocational Centre (CVC) which was catering for the workshop at that time requested cash from him to pay for food for the workshop. Betero says he gave the caterers (CVC) cash from the money donated by Ministry of Environment and Social Welfare and confirmed that he didn’t receive any receipt for the cash he gave to the caterers.
Betero also testified that he could remember having paid and spent about $60 for meals for catering staff who had to work overtime during the workshop.
Given the fact that Betero (PW4) couldn’t explain why he had issued a receipt two days after he cashed the cheque and why the delay and why he issued a receipt for a lesser amount than the cheque he had cashed; and why he didn’t ask for receipts for the cash he gave to the caterers, I am satisfied beyond reasonable doubt the missing amount of $1,000 could not be linked to the accused only but could also be linked to Betero as well (PW4) as there is indeed ample evidence to show that he was in possession of and did have access to, and was indeed spending and giving out cash from such funding of the Ministry of Environment and Social Welfare to CVC (caterers).
Therefore taking into account the whole of the evidence together I am satisfied that the prosecution had not proved beyond reasonable doubt that the accused without the consent of owners, fraudulently, without claim of right in good faith – took the money with intent at the time of taking to permanently deprive the owner. I therefore find the accused not guilty of Count 2 and I acquit him accordingly.
Dated the 20th day of July 2004
THE HON MR JUSTICE MICHAEL N TAKABWEBWE
Judge
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URL: http://www.paclii.org/ki/cases/KIHC/2004/173.html