Republic v Tooma - judgment [2006] KIHC 33; Criminal Case 21 of 2005 (24 February 2006)

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

High Court Criminal Case No. 21 of 2005

THE REPUBLIC

vs

IEKERUA TOOMA

For the Republic: Ms Olga Guillen
For the Accused: Mr Glenn Boswell

Dates of Hearing: 20 & 21 February 2006

JUDGMENT

Iekerua Tooma had been charged with five counts but before arraignment Ms Olga Guillen for the Attorney General entered a Nolle Prosequi on the first count, embezzlement by a public servant. That left the accused facing these counts:-

Count 2

Fraudulent falsification of accounts contrary to section 299(1) of the Penal Code Cap 67.

On or about 20 February 2004 at Aranuka in the Republic of Kiribati, Iekerua Tooma, employed as an Island Council clerk, wilfully and with intent to defraud, made a false entry in the Money Order Journal, which belonged to his employer.

Count 3

Fraudulent falsification of accounts contrary to section 299(1) of the Penal Code Cap 67.

On or about 19 March 2004 at Aranuka in the Republic of Kiribati, Iekerua Tooma, employed as an Island Council clerk, wilfully and with intent to defraud, made a false entry in the Money Order Journal, which belonged to his employer.

Count 4

Forgery of document with intent to defraud contrary to section 334(1) of the Penal Code Cap 67.

On or about 19 March 2004 at Aranuka in the Republic of Kiribati Iekerua Tooma forged Telegraphic Money Order PF.27 No. 56 with intent to defraud.

Count 5

Forgery of document with intent to defraud contrary to section 334(1) of the Penal Code Cap 67.

On a date or dates unknown between February 2004 and March 2004 at Aranuka in the Republic of Kiribati Iekerua Tooma forged Telegraphic Money Order PF. 27 No. 28 with intent to defraud.

Iekerua had served as Treasurer to several island Councils. On 1 February 2004 he became Clerk of the Aranuka Island Council. He told Bwanian Tokanteata, the Council Treasurer, to take leave. [That is Bwanian’s evidence which I accept beyond reasonable doubt: the accused said in his evidence that Bwanian asked him if he could take leave.] There was a formal handover/takeover between them on 18 February when Iekerua became acting Treasurer.

Bwanian took leave until his transfer to Maiana as Treasurer. His replacement on Aranuka was Nei Miire. Two officers of the Ministry of Internal and Social Affairs, Nei Mimitong Kirata and Nei Rine Ueara, took the opportunity of the change of Treasurer on Aranuka to make a surprise audit. Nei Mimitong, Nei Rine, Nei Miire and Bwanian (who returned only to collect his belongings) arrived in Aranuka on the Air Kiribati flight on 26 March.

Having given Iekerua a day to write up the books, Nei Mimitong and Nei Rine carried out the audit. They made a report (Exhibit P6). They found a cash shortage for $5,408.05. They reported:-

The officer purposely issued telmos that were found as fake but included them as part of the account in the register of paid telmos. The payment was raised and entered in the cashbook. During inspecting of the state fund cashbook the team identified the two paid telmos.

[This was the conclusion of the auditors. I have to come to my own decision based on the evidence before the Court.]

A Telmo is a telegraphic transfer of monies. When the radio operator (in this case one of the three ladies who acted as radio operator in February/March 2004) receives the radio notification, she fills out a form known as a “pf 27”. It is an advice to the payee. A pf 27 (Exhibits P3 and P4 are the pf 27s relevant to this case) has three sections. The top section and the middle section give date, amount, name of payee and some other details. The radio operator, having filled in these two sections, hands the pf 27 to the payee who takes it to the Treasurer. The radio operator enters the transaction in the Telmo register (Exhibit P9). Upon presentation of the pf 27 to the Treasurer the Treasurer gives the payee the amount of cash shewn on it, gets the signature of the payee acknowledging receipt and signs and dates the pf 27 himself as Paying Officer. The Treasurer keeps the pf 27 and should enter the payment in the Money Order Journal for the month (Exhibit P5).

The auditors found two false entries in the Money Order Journal:

PF 27 (No. 28) – for $4,000 in favour of Nei Tingae Mwatire

PF 27 (No. 56) – for $2,500 in favour of Leo Speedy

The auditors checked the Telmo register and found the entries Nos 28 and 56 were for different (and much smaller) amounts and in favour of different payees.

Iekerua said that after the auditors’ arrival he found the two pf 27s (Exhibits P3 and P4) in the drawer in the Treasurer’s room. He cannot explain how they came to be there. He saw that the bottom section of each was blank. He gave both to Nei Rebeka Bwatiata (acting radio operator who helped him bring the books up to date) for entry in the Money Order Journal. Nei Rebeka entered them. He later signed the Journal as “Postal Officer”.

Having, he said, found Exhibits P3 and P4 in the drawer Iekerua completed them so that they shewed acknowledgement of receipt by Nei Tingae and Leo Speedy – a purported signature is on each form – and signed them himself as “Paying Officer”. He paid over monies neither to Nei Tingae nor to Leo Speedy.

It didn’t occur to me something wrong when I found them in drawer.

He did not, he said, read the forms before completion.

The day before the auditors left Aranuka Iekerua handed to Nei Rine his letter of resignation as Clerk (Exhibit P9). In it he said:

The reason for my resignation due to my personal problems with my wife.

In evidence:-

...have resigned as clerk. Not happy with result of examination. They didn’t work with me: did it on own. On 26 – records incomplete: next day they still took them.

The only explanation Iekerua offered was that someone had put the two pf 27s in the drawer, perhaps to cause him embarrassment or harm. Yet he had the keys both to the Treasurer’s office and to the safe where the cash was kept. The door to the Treasurer’s office should have been kept locked. He had seen no one go into the room when he had left the door unlocked.

The accused’s explanation piles improbability on improbability. Only the Treasurer and the radio operator had blank pf 27s. Another person would have to obtain the forms, know how to fill them in, fill them in including forging the signatures of payees, gain access to the Treasurer’s office and put them in the drawer. Iekerua did not name directly anyone as a suspect.

The true explanation is irresistible: the accused filled in all three sections of each of the relevant pf 27s – a glance at them shews that the ink and handwriting in each section is the same – to explain a cash deficiency.

The accused signed the Payment Voucher (Exhibit P2). To the Payment Voucher should be attached the pf 27s which are the authority for the entries in it. When he signed the Payment Voucher the total shewn was $16,236.10. The auditors corrected the total to $9,741.10, a difference of $6,485. The total of P3 and P4 is $15 more than the correct total on the Payment Voucher.

The accused forged Exhibits P3 and P4 to shew fictitious payments out. He used Nei Rebeka to make – unknown to herself – two false entries in the Money Order Journal. The effect in law is the same as if he had made the entries himself. He then signed the Money Order Journal as Postal Officer, implying that it was correct. Yet he did so knowing it contained the two false entries. He thus falsified the accounts.

The prosecution has proved each charge beyond reasonable doubt.

The accused is guilty on all four counts.

Dated the 24^th day of February 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice