Police v Spidio [2002] PGDC 40; DC301 (6 December 2002)

DC301

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 35 OF 2002

Police
Complainant

V

Eddie Spidio
Defendant

Mt. Hagen: M. M. Pupaka
2002: 30th Sept., 28th Nov.

Criminal Law – Particular offence – Stealing – Accused an employee – Obtaining trade goods by false pretence.

Criminal Law – Burden of proof – Prosecution’s duty – Lack of proper safeguards in protecting customer’s cash advance by major trading company – More than one possible suspect in the circumstances – Process of elimination applied – Not all suspects eliminated satisfactorily – Tantamount to failure to discharge onus incumbent upon the State on the applicable standard.

Counsel
Senior Constable Giwoso for the Prosecution
The Accused in person

06th December 2002

M. PUPAKA, PM: The accused Eddie Spidio, aged 23 of Pilio Village is charged that he, between the period from 6th February 2002 to 21st March 2002, stole building materials worth K2987.21 belonging to Steamships Hardware, which is contrary to section 372 (7) (a) of the Criminal Code Act chapter No. 262 (the Code).

The accused entered a not guilty plea and in the ensuing trial the prosecution called 2 witnesses on the 30th of September 2002. The 3rd prosecution witness was not available so after a relatively lengthy adjournment the prosecution was forced to close case on 02nd December 2002, which is some two months after it opened case. The accused elected to testify and called only one other witness today, he in fact subpoenaed the witness.

The Prosecution case

The prosecution case is that the accused was at all relevant times an employee of Steamships Hardware in Mt. Hagen. He was employed as a sales clerk. (The accused contends that he was employed as a quotations clerk. However I find very little or no significant difference between the designations). During the course of his employment the accused is said to have obtained details of one of his employer’s client’s account. At all relevant times his employer’s client’s account had sufficient funds in it. It was an account opened at Port Moresby, N C D.

The accused is said to have done up quotations and had these delivered to be invoiced against his employer’s client’s account. He then obtained the materials using the invoices. He is said to have done this 4 different times.

The Defence case

The accused says he was approached by a person saying he had a cash account with Steamships Hardware in Port Moresby. He recalls being told by the customer that he wished to obtain building materials here. He then prepared quotations and delivered to the Invoice Clerk to do up the invoice and debit the customer’s account, after which the building materials were supplied to the customer. This is supposed to have happened four times. The accused is of the view that the customer lied to the Steamships Hardware HQ people in Port Moresby to defraud Steamships Hardware.

Findings

The practice followed by Steamships Hardware in supplying goods its cash credit customers seems on the evidence to be this:

The cash customer (persons having an account with Steamships Hardware, particularly with unspent money in it) comes to the sales people (including the Quotation Clerks) to have a quotation prepared. When that is done the customer would be referred to the Invoicing Clerk to be invoiced and have his account debited accordingly.

The evidence is not quite clear but what happens in the process is that at least the Invoicing Clerk must be satisfied that the correct person has obtained the quotation before Steamships Hardware HQ is contacted to have the account freed up to be debited /invoiced against.

While regular customers would pose no problems, other one – off customers would. Identifications including presentation of the original receipt on the cash deposit would be asked for, and produced and sighted. Also specific authorisation by the customer would be needed for customers who had made deposits from somewhere else, for instance in this case where the cash deposit was done in Port Moresby and goods were being obtained at Mt. Hagen. The witnesses called the specific authorisation as "to have it down in black & white". I take that to mean in writing.

I find vital inconsistencies and lack of thorough explanation as to what exactly happened in debiting the alleged defrauded customer’s account in this instance.

The Invoicing Clerk at the time, one Jenny Philip, said the accused came to her alone on all four occasions with the quotations. He told her the customer’s name and account number in Port Moresby. On the strength of the accused’s representations she invoiced and debited the customer’s account. Jenny Philip did not make sure. She did not ask for any ID or the original receipt or something in "black & white".

There seem to be a careless approach by Steamships Hardware in protecting their customer’s cash deposits. One would have thought that they would not allow anyone to obtain goods in Mt. Hagen against a Port Moresby account. Steamship Hardware HQ should not free an account for it to be invoiced at a place other than at the original place of deposit, unless under exceptional circumstances and where the identity of the customer is in no doubt. Yet, in this instance, safeguards like these are not followed.

The accused prepared all four quotations. However that fact alone is not conclusive or sufficient evidence that the accused is exclusively at fault. Under the circumstances I consider that there is more than one suspect in this case. The prime suspect is of course the accused, but I consider that the Invoicing Clerk and all other sales persons are also possible suspects. Considering that customer account details were /are accessible by all possible suspects, any one of them could have conspired with anyone posing as a "customer" to have quotations done and invoiced against a selected account. The materials obtained were substantial. It must have required having them taken out in vehicles. The accused, or any of the possible suspects, could not have taken them out themselves – they could be noticed instantly.

Then of course there is the possibility that the customer may have come to Mt. Hagen and obtain the materials himself. He could have then gone back to Port Moresby and seeing the lack of safeguards by Steamships Hardware, decide to lie and get a refund. This customer was never called to testify so the possibility that he may have lied and ‘pulled one off’ himself has not been adequately negated by the prosecution.

In all the circumstances of the case it is not safe to convict. I therefore acquit and discharge the accused Eddie Spidio forthwith. I further order that his bail money be refunded to him.

In Person: Complainant
Senior Constable Giwoso: Defendant