Fonua v R [2018] TOCA 20; AC 7 of 2018 (7 September 2018)

IN THE COURT OF APPEAL
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

AC 7 of 2018
[CR 97 of 2016]

BETWEEN : SELEMANA FONUA

- Appellant

AND : REX

- Respondent

Coram : Handley J
Blanchard J
Hansen J

Counsel: Mrs. P. Tupou for the Appellant

Mr. ‘A. Kefu SC and Mr. T. ‘Aho for the Respondent

Date of Hearing : 4 September 2018

Date of Judgment : 7 September 2018

JUDGMENT OF THE COURT

Introduction

[1] After trial before Cato J, the appellant was convicted of one count of theft contrary to ss 143 and 145(b) of the Criminal Offences Act (Cap.18) and one count of falsification of accounts contrary to s 159(a) of Criminal Offences Act. She was sentenced to concurrent sentences of two years imprisonment on each charge, the final six months suspended on condition that she commits no further offences punishable by imprisonment during her suspension.

[2] The appellant appeals against her convictions on the ground that the verdict was unreasonable and could not be supported by the evidence.

Background
[3] The appellant was employed by Tanoa Hotels (Tonga) Limited (Tanoa) on 11 March 2015 as an Administration Officer. Her responsibilities included assisting with preparation of the payroll. At the time the hotel was being refurbished. Approximately 100 employees were involved. The appellant was required to prepare a spreadsheet containing the names and hours of work of employees and a calculation of the amount each had earned. The spreadsheet was sent to Tanoa’s office in Fiji for approval and authorisation. Following approval and payment to Tanoa’s Tongan bank account, a cheque would be cashed and employees paid the sums recorded on spreadsheets.
[4] The Crown case was that the appellant falsified the spreadsheet by adding the names of non-existent employees - so-called “ghost workers” - and kept for herself the cash drawn for their wages. The sum involved was initially alleged to be $44,098. It was reduced to $23,039 in the course of the trial and, ultimately, found to amount to $21,299.
The evidence
[5] The spreadsheets were compiled from attendance records prepared by the staff members who had direct responsibility for supervising the employees. What was called an attendance register was compiled for each week. The names of those working were entered and the days each worked. Overtime worked was noted. Separate individual timesheets were completed for administrative staff such as the appellant herself, signed by the staff member concerned and countersigned by their supervisor.
[6] The appellant had ultimate responsibility for the preparation of the spreadsheets. She was assisted by other staff members, two of whom gave evidence. Elaia Kafoa (called Sita at the trial) worked under the appellant from June to September 2015. Sita said she helped with the preparation of the spreadsheets, filling in the hours worked by each employee before sending it electronically to the appellant. She said that the spreadsheets relied on by the Crown were not the spreadsheets she had prepared. There were additional names on them, including the name of the appellant herself.
[7] Sita also assisted with the actual payment of wages. She said the spreadsheets she had prepared were used for that purpose. She cashed cheques for the amounts received from Fiji and gave the money to the appellant who would retain an amount, either in her desk or in a bag, which she told Sita was for “outside contractors”.
[8] The evidence of Taufa Tatafu, who was employed in the same role from 12 October 2015, was to similar effect. She also compared spreadsheets she had prepared with those relied on by the Crown as having been approved by Tanoa Fiji. The latter contained additional names, including that of the appellant. Ms Tatafu also gave evidence of the retention by the appellant of surplus cash drawn for wages including a sum of money which, at the appellant’s request, Mrs Tatafu delivered to her at a hotel.
[9] A director of Tanoa, David Hunt, said he employed the appellant whom he had previously employed when both worked for another firm. He confirmed the procedure by which payroll records were compiled and wages paid. He described how he had been alerted to the irregularities when the appellant was away in December 2015 and he had helped Ms Tatafu with the wages. He realised there were names in the spreadsheet that were not in the attendance register. With the assistance of Ms Tatafu, he checked earlier payments and found the same thing had occurred. He confronted the appellant on her return. She did not deny the allegation and agreed to resign and to pay back $15,000 if she was not prosecuted. When she failed to honour that agreement, the Police were informed.
[10] The appellant elected not to give or call evidence.
The verdict
[11] At the end of the prosecution case, Cato J rejected an application to discharge the appellant on the ground that there was no prima facie case. That application relied on the Crown’s failure to produce the originals of the spreadsheets alleged to have been prepared by the appellant, the attendance registers and the cheque butts which established the cash drawn for wages. The original documents having gone missing, the Judge ruled the prosecution was entitled to rely on copies.
[12] In the reasons for his verdict, Cato J noted the advice of Crown counsel that the original documents had been misplaced by the Police. He accepted Mr Hunt’s evidence that the originals had been handed to the Police two years previously and were not among a file of documents returned by the Police. The Judge said he was satisfied the original documents had been lost by the Police and the copies properly admitted under s 67(a) and s 64(b) of the Evidence Act (Cap.15). He said he was also satisfied that the spreadsheets, attendance records and cheque butts were true copies of documents held by Tanoa as business records. He said the register of attendance and spreadsheets were properly proven by Mr Hunt who was familiar with those documents, and the cheque butts proven by Ms Tatafu. Of relevanceo, was, was the fact that the amounts on the cheque butts coincided with the amounts on the spreadsheets relied on as having been prepared by the appellant and sent to Fiji for approval.
[13] Cato J said he was satisfied that the attendance registers provided the basis for the spreadsheet entries of employees for the relevant weeks. He found that the spreadsheets were signed either by Mr Hunt or the appellant and sent to Fiji. He accepted the evidence of Elaia Kofoa and Taufa Tatafu that the spreadsheets sent to Fiji were not the spreadsheets they had prepared; the name of the appellant herself and the additional “ghost names” had been added. He accepted the evidence of both witnesses that they saw the appellant regularly take sums of money from the cash that had been obtained for payment of wages.
[14] Having examined the spreadsheets for the relevant period, the Judge said he was satisfied beyond reasonable doubt that the spreadsheets prepared by the accused were those acted on by Tanoa Fiji and used for the purpose of withdrawing cash for the payment of wages. He also expressed himself satisfied that each of the spreadsheets contained “ghost names” added by the appellant for the purpose of generating additional sums of cash.
[15] Cato J expressly rejected the suggestion, raised on behalf of the defence, that one of the supervisors (who had died by the time of the hearing) may have provided the appellant with the names of additional employees. He referred to the evidence of a supervisor, Mo’ale Moala, who was adamant that no one would be paid if their name did not appear on the attendance register. He also referred to evidence that it was the spreadsheet prepared by the appellant’s assistants which was used for the purpose of payment of wages, not the spreadsheet containing the additional names.
[16] The Judge concluded that it had been established that on 17 occasions between 22 May and 11 December 2015 the appellant had produced false documents, namely the spreadsheets containing “ghost names”, and that during the same period she entered into a pattern of deceit so as to steal the proceeds of the inflated cheques for wages that were drawn by Tanoa. After adjusting for some minor inaccuracies and the erroneous inclusion of a sum of $1,000 for the week in which the appellant’s offending was detected, Cato J concluded that she had knowingly taken the sum of $21,299, fraudulently or dishonestly and without colour of right, applying the funds for her own use and enjoyment.
The appeal
Grounds of appeal
[17] As refined and reformulated by Mrs. Tupou at the commencement of the hearing, the grounds of appeal are:
(a) The Judge erred in admitting in evidence the unsigned spreadsheets.
(b) The Judge erred in admitting in evidence attendance registers for the period 31 August – 25 September 2015.
(c) The Judge erred in finding that the attendance registers were the sole source of the names of employees for the purpose of compiling the spreadsheets.
(d) There was insufficient evidence to support the conviction for theft.
First ground
[18] The evidence established that the spreadsheets prepared by the appellant were signed by Mr. Hunt or by the appellant herself before being sent to Fiji. The evidence does not disclose how the spreadsheets were transmitted though, given the time constraints, it seems likely they were scanned and transmitted electronically. If so, the original signed document would have remained in Tonga.
[19] As earlier noted, Cato J accepted the evidence of Mr. Hunt that the signed spreadsheets were among the documents handed to the Police when Tanoa made its complaint. There was a suggestion by Ms. Tatafu that they might have been returned. She undertook a thorough search and could find none of the original documents. The Judge was plainly entitled to conclude that the originals had been lost or destroyed and that, pursuant to s 67 of the Evidence Act, secondary evidence could be given of the existence and contents of the documents.
[20] By s 64 of the Evidence Act, secondary evidence relevantly includes:
(b) copies made from the original by mechanical processes which insure accuracy of the copy and copies compared with such copies;
......
(e) oral accounts of the contents of any document given by some person who has himself seen it.
[21] Ms. Tatafu explained that the spreadsheets relied on at trial were copies of spreadsheets stored on the appellant’s work computer which was seized as soon as the offending was detected. Mr Hunt confirmed they were the spreadsheets he had seen and authorized. The evidence of Ms. Tatafu and Sita established that the cheques cashed to pay wages were for the same sums shown as required on the spreadsheets. The inference that they were the spreadsheets sent to Fiji for authorization is irresistible.
[22] In terms of s 64(b) of the Evidence Act, the spreadsheets produced at trial were made from the originals stored on the computer. The oral evidence established that they were identical to the spreadsheets sent to Fiji and relied on for the purpose of drawing cash for payment of wages. The fact that copies of the signed spreadsheets were not produced is of no consequence. The Judge was right to rule the computer-generated copies admissible.
Second ground
[23] Mrs Tupou accepted that the attendance registers relied on were admissible save for those relating to the period 31 August to 23 September 2015. The concern with the records for that period is that Mo’ale Moala, who was primarily responsible for their compilation, said he was not the author and he could not identify who was.
[24] We see no reason why that should affect the admissibility of the attendance records for the period in question. Mr. Hunt had confirmed that the attendance registers relied on were copies of the originals. The authenticity of the registers as a business record was established by Mr Moala himself and also by Sita who had, at times, helped with their compilation. The Crown case did not require proof of the accuracy of the attendance registers in every material particular, merely to show that they provided the data used for the preparation of the spreadsheets. The evidence was fully adequate for that purpose.
Third ground
[25] Mrs Tupou took issue with the proposition that the attendance registers were the sole source of information. She referred to evidence that from time to time Mr Moala or Iteni Maile (the supervisor who had died before the hearing) would give the names of additional employees to the appellant. As we understand it, Mrs Tupou sought to argue that the additional names appearing on the spreadsheets prepared by the appellant may have been legitimately sourced from information not contained in the attendance registers.
[26] It appears that, from time to time, the name of an additional worker was given to the appellant and overtime hours were added to workers already listed. But Sita, who was cross-examined on this point, was adamant that any such changes were made to the spreadsheets she prepared. As she said, were it otherwise, the workers concerned would not have been paid or paid the full amount of their wages. For it was her spreadsheet, not the spreadsheet submitted by the appellant, that was used for the purpose of paying the workers. The addition of names that did not appear in the attendance register could not account for the ‘ghost names’ that appeared in the spreadsheet prepared by the appellant.
[27] Mrs Tupou referred us to several instances where the attendance register did not coincide precisely with spreadsheets prepared by Sita and Ms Tatafu and to discrepancies between lists of employees and the corresponding attendance register. But these issues were not explored in cross-examination at trial and could not be enquired into for the first time on appeal. They were, moreover, isolated discrepancies that could not have gone anywhere to explain the uniform pattern of falsification revealed when the spreadsheets prepared by the appellant were put alongside those for the equivalent period prepared by her assistants.
[28] This ground of appeal also does not assist the appellant.
Fourth ground
[29] In submitting that the evidence was insufficient to support the conviction for theft, Mrs Tupou pointed to inconsistencies in the evidence of Ms Tatafu as to the amount she delivered to the appellant at a hotel and the date of the delivery. Her evidence on this issue was discussed by the Judge (at [56] of his verdict). He expressed himself satisfied that the payment was indeed made at the appellant’s request. There is no basis for disturbing his finding on this issue nor his acceptance of the evidence of both Sita and Ms Tatafu that they regularly saw the appellant take the money that was surplus to the sum drawn to pay employees.
[30] In one respect only is it necessary to modify the findings of Cato J. At trial, the Crown elected to rely only on defalcations that could be proved by reference to cheque butts. In the course of preparation for the appeal, it was ascertained that the relevant cheque butt was not produced to support two of the payments ultimately relied on. They related to the theft of $1,200 and $960 on 5 June and 25 September 2015 respectively. That reduces to $19,139 the total sum shown to have been stolen by the appellant.
Conclusion
[31] All grounds of appeal having failed, the convictions must be upheld. Once issues affecting the admissibility of the business records are disposed of, the case against the appellant is overwhelming. The evidence points irrefutably to her having falsified the spreadsheets by the addition of ‘ghost worker’s and to her taking the additional cash generated by their inclusion.
[32] There was no appeal against sentence. Mrs Tupou faintly suggested that the reduced sum proven as stolen might justify some adjustment to sentence. That could not be supported. The lesser sum does not affect the overall criminality of the offending which was the principal determinant of sentence.
Result
[33] The appeal against conviction is dismissed.

................................

Handley J

................................

Blanchard J

................................

Hansen J