Rex v Fonua [2018] TOSC 3; [2018] Tonga LR 322; CR 97 of 2016 (19 January 2018)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR 97 of 2016

BETWEEN: R E X - Prosecution

AND: SELEMANA FONUA - Defendant

BEFORE THE HON. JUSTICE CATO

Mr Aho for the Prosecution
Mrs Tupou for the Defendant

V E R D I C T

1. The accused, Selemana Fonua, was charged on indictment with one count of theft contrary to section 143 and 145(b) of the Criminal Offences Act and one count of falsification of accounts contrary to section 159(a) of the Criminal Offences Act.
   
2. The particulars in relation to the theft count were that on or about the 3rd April 2015 to 11 December 2015 at Nuku’alofa whilst being employed as an Administration officer for Tanoa Hotels (Tonga) Ltd she dishonestly took without any colour of right a total of $36,818.00 belonging to Tanoa Hotels (Tonga) Ltd with intent to deprive Tanoa Hotels (Tonga ) Ltd permanently of such money, and to convert such money for the use of others without permission of Tanoa Hotels (Tonga) Ltd contrary to sections 143 and 145(b) of the Criminal Offences Act.
   
3. After, it became apparent during the course of the trial that the Crown could have difficulty in establishing certain allegedly inflated spreadsheets, the Crown reduced the sum charged in the indictment to $23,039.00. The principal reason for this was that it was unable to show that certain spreadsheets with allegedly inflated wages for non-existence or “ghost” workers had been received allegedly prepared by the accused and acted upon by the parent company Tanoa in Fiji. In other cases, there was a coincidence between the amount claimed in the spreadsheet allegedly a copy of the signed spreadsheet sent to Fiji with the proceeds from a cheque drawn by Tanoa (Tonga) for wages after it had received a payment from Fiji for the amount in the spreadsheet claimed as wages. This further significantly reduced the claim which had already been reduced from the amount initially claimed in the indictment of $44,098.00.
   
4. The particulars in relation to the false accounting were that on or about the 3rd April 2015 and the 11th December 2015 at Nuku’alofa whilst employed as an Administration Officer for Tanoa Hotels (Tonga) Ltd, the accused altered or falsified the Tanoa Hotels (Tonga) Limited’s payroll spread sheet without the authorization of her employer, Tanoa Hotels (Tonga) Ltd.
   

EVIDENCE

5. Mr David Hunt was a director of the complainant company, Tanoa Hotels (Tonga) Limited, “Tanoa”. He gave evidence that he had been involved with refurbishing the hotel and that there were about 100 employees involved. He had formerly employed the accused and she became an employee of Tanoa when he joined the company on the 11^th March 2015. She was responsible to Mr Hunt. Her responsibility rested with the preparation of the payroll. The evidence revealed that from time to time different employees assisted her with its preparation. She had to create a spreadsheet from attendances records other information and send to Fiji for approval. The attendance sheet for a period consisted of a list of names of workers and the dates and times they had worked.
   
6. Mr Hunt gave evidence that Mr Mo’ale Finau would list the names generally of all employees who were engaged in the hotel and took their names down on the door, at a roll call. Information was also provided as to employees by team leaders of whom one was Iteni Maile, who has since died. Mr Hunt said that he checked the work sheets but not the spread sheets. The work sheets would be prepared from information coming from teams of workers of which there would be about 4. He did not personally check the spread sheets which were compiled from information concerning workers and their hours of attendance. He said that he had relied on the accused for its correctness, in this regard. He said that she had worked for him for some years in another business prior to coming with him to Tanoa. After signing the spread sheet it had to be sent to Fiji for approval and payment would be received from Fiji corresponding with the amount claimed in the spreadsheet. After that a cheque would be drawn by an employee of Tanoa in Tonga and the proceeds would be dispersed to employees as wages, each Friday. He said that Taufa Tatafu or Sita, both of whom gave evidence, would be responsible for cashing the cheque and paying the staff. The money would be put into envelopes for the employees on a Friday afternoon and then would be given to employees. He said that there was no significant complaint that he could recall from staff.
   
7. He said that the accused had been away in early December 2015 (10^th - 13^th) between the Thursday and Monday night and wages were paid on the Friday. He said that he had to do the wages himself with Taufa Tatafu.
   
8. He found out that there were extra names on spreadsheets than were present on the manual attendance sheet of those working. He confronted the accused with this on return after he had discovered, with the assistance of Ms Tatafu, that a significant sum of money had been taken over and above what should have been recorded as wages for the respective periods. This had been achieved allegedly by an inflation of the spreadsheet that was sent to Fiji by the addition of names of employees that had not been recorded on the relevant attendances sheet. These were referred to as “ghost” names. He gave evidence that he helped prepare a letter of resignation for the accused which was produced in evidence. He explained that he had attempted to avoid her prosecution after her resignation on the basis that she paid $15000 of the money back to the Company. He said that he had the director’s approval for this but the money was not forthcoming so a prosecution was commenced. At that stage, he thought about $44,000 was involved. He had worked with the accused for about 4-5 years prior to both joining Tanoa, and was a director of Tanoa (Tonga) Ltd.
   
9. He said, when asked in cross-examination, that he had told the accused there had been a falsification but he did not say the amount. She had remained silent and did not deny the allegation.
   
10. Mr Hunt was later recalled for Mr Aho to lead evidence from him concerning the documentation which was contained in two books. The first booklet contained a summary of non - existent workers. Taufa Tatafu had she said urgently prepared this over a period of about three days when making inquiries about the missing money. Then, he was referred to the spreadsheets in the folder for the relevant periods and confirmed they were true copies of spread sheets. It should be noted that the copies produced were not signed. However, there was additional evidences in relation to each spread sheets which included the names of the accused as an employee and alleged to be one for which she was responsible of a cheque being drawn by Tanoa in Tonga that was coincident in value the wages sum claimed in the spread sheets sent to Fiji. There was evidence that Fiji would provide funding for wages to Tanoa in Tonga base on the spread sheets sent to it that was signed either by Mr Hunt or the accused who was in charge of the payroll. The second folder produced contained attendance sheets of labourers at the Tanoa hotel from 4^th May to December 2015 and he said also that they were all true copies of Tanoa records. He said the originals had been lost and despite inquiry could not be located. They had, he thought, being sent to the police 2 years before, but despite searches, the originals of these documents could not be located. I was informed by Mr Aho that documents had been given to the police but although some of the documents had been located and returned, the originals of the attendance sheets, signed spreadsheets sent to Fiji and cheque butts had not been found by police. For these reasons, in a separate written ruling delivered on the 7th December, 2017, I admitted these documents and ruled that there was a prima facie case for the accused to answer. A file of documents that the police had located had been exhibited as 3 during the trial but no counsel made any reference during the trial to any documentation contained within the returned file.
    
11. Mr Hunt produced a letter of resignation which made no mention of the defalcations because he said he was trying to help the accused: instead, reference had been made to her non-existent health issues as a basis for her resignation. Taufa Tatafu had typed this resignation. He denied that it had been written that way because she had denied the allegations. He described her as a friend at that stage. He admitted that he had told her there was no alternative but to resign. She signed a resignation letter on the 28^th December 2015 and he said that she had until the 21^st January to come up with $15,000. That was part payment of the complete sum. A complaint had been made in early February to the Police.
    
12. Mr Hunt was at common law a person in authority. The accused was under no obligation to speak to him and I do not draw any adverse inferences from her silence or from her signature to any resignation letter.
    
13. Taufa Tatafu gave evidence that she had been employed since 12^th October 2015 until after the accused had resigned. She became personal assistant to the general manager. She said she had worked with the accused in accounts and administration, mostly in payroll. She assisted the accused in that regard. The payroll would be brought to the office by Mo’ale who would have with him the attendance book containing the employee details in preparation for wages to be assessed.
    
14. She said that, once Fiji had approved the payroll spreadsheet and payment was received from Fiji for wages, them a cheque would be issued by Tanoa in Tonga for the wages. This would be cashed and then the cash distributed to workers with the assistance of her, the accused and sometimes Sita who had been involved with the wages before her. Names would be placed on the envelopes. She said that if the foreman, Iteni Maile, came with a new employee he would notify Mo’ale, the register would be altered, they would be enrolled with Fiji and would get an employee ID.
    
15. She said that she noticed every week they did the payroll that the accused would take amounts of cash. She said every week that we did the payroll with cashing out wages for staff “Selemana” would take cash before or after amounts of $1000 plus from the cash they were dealing with. Later, she seemed to clarify there were two large amounts of cash of $1700, and one of $2000.00. She said that she did not give a reason. She also said there was a request from Fiji to produce a year to day report showing employee’s payments from the beginning. She said it took the accused more than a week to prepare and she thought that this was odd. She said all the information was present in spreadsheets and they could have been obtained and sent she estimated within three days.
    
16. She said she did not report this to Mr Hunt because she was a new employee. She was not in a position to ask questions although she said that she had suspicions.
    
17. She said that she had spoken with Iteni Maile a foreman in charge of labourers, who had since died, and after that Mr Hunt had asked her to confirm whether her suspicions were right and she did this by looking at the spreadsheets for the week ending 16^th October and checking with Mo’ale if persons were working. When it was discovered they were not, then her suspicions were proved right. She was then told by Mr Hunt to go back to the beginning of the renovation.
    
18. She said that, in one case, there were two spreadsheets for the period ended 16^th October 2015 and they did not match in terms of the employees names recorded. She said that she had created spread sheet B by referring to the attendance book. A second spread sheet for the period marked A that was used for the payroll. She said that there was a difference of $1710 between the amounts claimed in the spreadsheets B and A and in the amount received from Fiji which corresponded with the amount in A over the spreadsheet she had prepared and that the accused had taken this money. She said the spreadsheet that had been sent to Fiji contained the accused’s name where as the one prepared by her did not. There were added names on A spreadsheet as well that were not on the attendance register list and had not been inputed on the spreadsheet that she prepared. None of the additional names appeared in the attendance register.
    
19. She referred to other periods with information set out in a document exhibited as summary of “non-existent workers at Tanoa Hotel”. She said that she had prepared this document after reviewing attendance records, in about three days. She confirmed that for the pay week ending 11^th December 2015 the same thing had arisen. She had been involved with this payroll. She said the balance of the excess wages of $1000 would have been taken by the accused. She also said that in November she had taken $1386.00 to the accused at the Talieva hotel. That was the week she said ending the 20^th November, 2015. The accused had told her that this money was for separate contractors. Later, she said that must have been in December when taxed with the fact that the accused birthday was on the 4^th December. She agreed that she might not be accurate in the precise amount of money and had given police a different figure.
    
20. She said that Iteni Maile, the foreman, when there was a new employee would notify Mo’ale and he would be added to the register book. She said there were others who drew up the attendance register beside Mo’ale; Ilai Kimi and Tito she recognized. She said Mo’ale compiled registers for period when she worked between October 2015 and the end. She maintained it was Iteni Maile, now deceased, who would introduce new labourers who would then be recorded in the attendance book or register.
    
21. Under cross-examination, she said her job with payroll had been to verify with Mo’ale the hours being worked by the staff. She said that either Mo’ale or Iteni would tell her the hours employees worked. She said that lists of overtime would be given.
22. I mention only her evidence as it relates to the various periods when the Crown now claims there were irregularities that made up a total amount of $23,039.00 contained in a schedule that as produced in evidence for various periods between the weeks ending 22^nd May 2015 and the 11^th December 2015, where cheques corresponding with spreadsheets were present. The relevant weeks were the 22^nd May 2015, 29^th May 2015, 5^th June 2015, 12^th June 2015, 19^th June 2015, 26^th June 2015, 11^th September 2015, 18^th September 2015, 25^th September 2015, 2^nd October 2015, 9^th October 2015, 16^th October 2015, 23^rd October 2015, 20^th November 2015, 27^th November 2015, 3^rd December 2015 and the 11^th December 2015.
    
23. For the week ended 29^th May 2015, it was confirmed that Siosateki Havilii, Sione Vakameilalo and Alifeleti Pontfi were recorded on the attendance list making a difference in the deficit by $720.00 for that period. There were other instances, although not many, where she acknowledged that certain “ghost” names were in fact present or payments were higher in her record of non-attendant workers than was the case in fact. It would also seem in the period of spread sheets persisted with there was an excessive amount claimed of $20.00 against the name of Pila Fonuamama for the period ended 19^th June 2015. Whilst other inaccuracies were noted, these did not occur in the periods mentioned that is the remaining indicted periods. I also am not satisfied that the accused, who was not present at Tanoa on the Friday that is payday in the week ended 11^th December, 2015 but on holiday in Ha’apai necessitating Mr Hunt and Taufa to distribute wages and did not return until the following Monday when she was confronted by Mr Hunt, actually received the proceeds of the spreadsheet containing additional names ($1000.00) which I am satisfied she had prepared before leaving for Ha’apai. Accordingly, these sums will be deducted from the amount of $23, 039.00 leaving a sum of $21, 2999.00.
    
24. For three of the periods in issue (the weeks ended 10^th September 2015, 16^th October 2015, and the 20^th November 2015), two spreadsheets were produced. In each case, there was a variation in the spreadsheets in two relevant aspects; the first was that the accused’s name was present at the top of the spreadsheet as an employee claiming wages, and in that spreadsheet in each case were additional or “ghost” names that did not appear in the attendance register.
    
25. She said she first knew there was a problem when she saw a spreadsheet that was used to distribute cash that was different from one on the accused’s desk. That was 2-3 days before Hunt had confronted her. It was an earlier spreadsheet from the 9^th to the 15^th October, 2015. She said that she had found this but did not say anything at the time.
    
26. She said that she took $1286.00 to the Talieva bar; to the police she had said $1618 some months later. Initially, she said that this arose in November but later corrected this when she found out under cross-examination that the accused’s birthday was on the 4^th December. She said it was a Friday. She later said she was uncertain about the sum of money that was involved.
    
27. She said, under cross-examination, that the accused had rung her after she had left Tanoa’s employment and had told her that Iteni Maile had come to her with a list of labourers but Tatafu said that involved enrolment. She said Iteni had no part in the preparation of the payroll. She did not recall Iteni coming to her and saying there was an extra employee. She did not accept that, in the preparation of the payroll, Iteni would come with the list of the labourers and the accused would work on that list. She said that she got the hours for the payroll from Mo’ale.
    
28. She said that unsigned spreadsheets were sometimes sent to Fiji. She said that the accused had prepared the final spreadsheet before she went to Ha’apai. She said Mr Hunt had not done it.
    
29. She disagreed that Iteni brought the names every week and if somebody did not work he would tell her. She said that it was not every week that Iteni would bring her new names.
    
30. She agreed that Iteni Maile would come to her and said he had fresh workers. She denied entering those into the register because it was not her job. She said the names in the spreadsheets she worked on were not put in by her but by the accused. She said she put the hours into the spreadsheet, not the names. Iteni had no access to her computer. She said that Iteni would come to her with new enrolments and she did not accept that the accused would be given a list from Iteni that she would work off. She said that if Iteni talked to her or another about a worker being taken on that would require a name to be added to the attendance list. The names she said were already on the spreadsheet when she worked on it. She inserted the hours from the attendance records and the rates from the accused. She said sometimes David Hunt signed the spreadsheet. Once she had sent it when it was not signed after the accused had left, and then said she could not recall when that had happened.
    
31. She repeated under cross-examination that Iteni would only bring new names of employees to the accused and her and that was not every week. It was put to her that what the accused said was very different because the accused said he brought the name very week and if someone on the list would not work he would tell her. Taufa said that what she said about Maile was what she knew.
    
32. It was put to her that she was protecting Maile, and that he had an ice habit with which she agreed was a heavy drinker with which she agreed. She admitted to being his mistress and denied knowing he had made up names. She was accused of making up this story and that the copies of spreadsheets are ones she made up. She made them up it was alleged to cover her lover’s tracks. She denied this and said the spreadsheets that had been provided most of it was received from Fiji because she had made a request of Fiji to provide spreadsheets that the accused was sending to them for the payroll and also those spreadsheets were printed from her laptop which she was working on. That laptop she said that she did not have any access to.
    
33. She said it was not her job names in the spreadsheet and she did not alter the register because it was not her job to do this. She said Iteni did not have access to her computer.
    
34. Under re-examination, she said that she did not add any names to the spreadsheet. Mistakes in her summary she admitted were about three. She said that the spreadsheet she worked on came with the names to her and then she worked on the hours only. She did not add names. She was recalled to formally produce the butts from the Tanoa hotel that recorded cheques paid to obtain cash for wages that were coincident with the spreadsheets that included the accused as an employee and additional or “ghost” names.
    
35. Sita Kafoa commenced working for the accused who was in charge of accounts in June 2015. She had been engaged previously with the Lagoon Lodge which Tanoa had taken over. Her job was to assist the accused in processing time in relation to employees. She stopped assisting her in September 2015. She would do the roll calls and add up the hours, put it on a list and give it to the accused. She worked out the hours from the attendance register.
    
36. She said that she would call out names from the register book of names that she got from Mo’ale. Mo’ale would note overtime in the book.
    
37. She said that she used the attendance register to fill out the spreadsheet. That was the only book she used. She worked out the hours and the accused the overtime from information given by Mo’ale.
    
38. She said that she inputed the hours onto the spreadsheet. Then she would give it to the accused to double check it before it went to Fiji. She said that she had never inputed the accused’s name into her spreadsheet. The accused had told her she and David Hunt were paid directly by Fiji. At the beginning, she said they wrote things on bits of paper as opposed to an attendance register. They did not use spreadsheets at the beginning. She gave the accused the attendance register and the spreadsheet she had worked on. She said that she had not completed spreadsheets where the accused’s name was on it. She said that when she cashed the cheque she would take the money to the accused who would keep some aside and pay the rest over in wages. The accused said that it was for outside contractors. That happened always. She did not see outside contractors come and pick that money up. Sometimes, it was put in her office desk and other times in a bag. Later, Mr Aho took her through two periods weeks ending 12^th and 19^th June (in both cases there being “ghost” names) and in both cases she said that she did not compile those spreadsheets.
    
39. She spoke of one occasion under cross-examination when 5 uncollected pay packets were kept for Iteni by security. They were people in Iteni’s group of workers.
    
40. She said she also gave to the accused lists of hours worked as well as the attendance register.
    
41. It was put to the accused by Mrs Tupou that the accused maintained spreadsheets were not used until August to September when an audit was being done. That is spread sheets were done retrospectively. The witness said no.
    
42. She said moneys taken by the accused were not for outside workers because they were paid by cheque. She said she was responsible for doing this. She said Mo’ale would sometimes give additional information re hours which would mean she would alter the spreadsheet. It was put to her by Mrs Tupou that the reason why the names that have been referred to her by the Crown that were not in her spreadsheet it was possible that they were names given by Iteni after she had given her spreadsheet to the accused. Her response to this was that she could not ascertain if those names were given by Iteni to Mana. She said those names would have to be given to her to be registered on attendance. She said had Iteni given the accused additional information she should have been told about it. She said had she known she would have made up another spreadsheet. She said that this had happened when the accused had told her about additional people working and she had changed her spreadsheet before it was handed to the accused. She said she would not have expected a second spreadsheet to have been created with this additional information by the accused. She said the spreadsheet she had created was the one she had used to distribute pay and not the one with extra names that was sent to Fiji. If there had been extra names she would have expected to distribute money to them. She confirmed that she had not known what was sent to Fiji. She did not distribute according to any spreadsheet that bore the accused’s name. The spreadsheet she worked on was created on her computer and emailed to the accused’s computer. She said, if there were changes of overtime with a worker not on her spreadsheet, the accused would make the changes to her spreadsheet and that would be used to distribute cash into the worker’s envelopes. She maintained that it was her spreadsheet that should have been sent to Fiji if wages were distributed from it and not one with the accused’s name in it.
    
43. She produced one spreadsheet that she had at home which she had prepared for the period ended 10^th September 2015. (Ex 6) The accused’s name was not included. The spreadsheet is for a different amount from the one with the accused’s name in it which matches with the amount given in the cheque drawn by Tanoa to pay wages. Several names appear on the spread sheet containing the accused’s name that is not on the one she prepared.
    
44. She said that if Iteni Maile had given the accused additional information it should have been communicated to her and she would have made up another spreadsheet. She admitted that she had received information that there were additional people working and had changed her spreadsheet before she handed it over to the accused. She said she did not know about a spreadsheet that was sent to Fiji. She only used her spreadsheet to pay workers. She did not see a spreadsheet that bore the accused’s name that she had used to distribute wages.
    
45. She said she saw the accused take money from every pay. She, however, said that she could not recall whether she took the balance of the one in September where she had the draft spreadsheet in her possession for the period ending 10th September 2015.
    
46. Mo’ale Finau was present at the tool shed and also responsible for the roll calling of workers. He recorded worker’s names and ticked the time they commended and finished. He would do it generally and Iteni Maile would furnish him information concerning the names. The attendance register was taken to the office for the payroll. He did not think that any labourer should get paid unless his name was on the attendance register. Iteni Maile was the foreman involved with roll calling. There were other foremen but they were involved with other work. The attendance book was used in May for the first time. The person who called out the name filled in the attendance book. His name was included in the attendance register. He first commended the register on the 4th May 2015. He said Iteni directed the roll calling and he did not do it all the time. He did not know of any incident when Iteni would give him names of person for the purpose of taking them to the accused for their pay to be processed even though they did not work. With outside contractors most of the pay process was handled in the office. He then identified the attendance sheets he dealt with. He said if there were changes in the book, Iteni Maile would do that.
    
47. At the conclusion of the evidence, the accused made a submission of no case which I rejected in a written judgement. After a long adjournment after the Christmas adjournment, the accused elected to call no evidence. The case was adjourned on the 16th January for me to consider my verdict.
    

SUBMISSIONS

48. The principal submission from Mrs Tupou was that the prosecution was flawed because the original signed spreadsheets had not been produced. I explained that I had already ruled on that but would reconsider this point on the issue of reasonable doubt. She mentioned R v Manu [2000] TLT 386 as supporting her submission. She submitted that the spreadsheets prepared by Sita or Taufa were no more than drafts which the accused could add to, and that there was no proof that the spreadsheets exhibited were those signed by the accused and submitted to Fiji. She seemed to suggest that also that Mr Hunt should have produced spreadsheets signed by him. Mrs Tupou also contended that the Prosecution cases was deficient because there had not, in any event, been a complete list of documents produced by the prosecution for the preparation of the payroll spreadsheets, she complained that the attendance register was not the only document that as used in the preparation of the payroll spreadsheets. She suggested that it was incorrect to say that the payroll was restricted to the names appearing on the attendance register. The evidence was incomplete and the case should fail. She also complained that Taufa had made mistakes in her calculation and was unreliable in this and in other respects. She contended that the cheque butts did not in every case refer to Tanoa hotel and could anyones’ cheques. No bank statements were produced. She submitted that there was no proof that cheque had been drawn and therefore no proof of loss to Tanoa. She submitted, that if the spreadsheets could not be brought home to the accused, the charges must fail. She said that, in relation to Sita, no evidence was given of the moneys to be set aside. It could have been her pay. She contended also that establishing a pattern was no sufficient unless there was clear evidence that the accused was directly involved in a casual act relating to the pattern. At one point in her submission, she said Sita had said that Iteni had a list, he would provide it directly to Selemana and not her. This had caused me concern at the trial that the accused had raised a sufficient evidential foundation to suggest Iteni Maile would give evidence of additional contractors to her and this would explain their existence. I questioned Mr Aho at length about implications for this in the Crown case in the absence of Mr Maile who the Crown originally intended to call as a witness, prior to his death. I also said that I would have to check the evidence to ascertain whether there was a credible foundation in the cross-examination that Maile provided additional information concerning workers additional to the entries in the register, and having done so I am not so satisfied for reasons which I will give shortly.
    
49. The thrust of Mr Aho’s submissions was that I should accept the evidence of the Crown witnesses, and that it was plain beyond reasonable doubt that it was the accused who was responsible for inputing the “ghost” names and inflating the wage spreadsheet and that this could only have been done so that she could steal the money alleged. He submitted that the Crown had established its case beyond reasonable doubt.
    

REASONS

50. I have already given my ruling on the no prima facie case judgement that the copies of the attendance records, the various spreadsheets, and the cheque butt records were admissible based on the fact, confirmed by Mr Aho, that the original documents had been misplaced by the Police who had received them from Tanoa. This was delivered on the 7th December, 2017. I am satisfied that a search had failed to find the originals although one file had been unearthed of documentation from the Police that had been exhibited, but neither counsel made reference to any of those documents, which I was informed did not include the originals of the attendance records, the signed spreadsheets from Fiji nor the original Tanoa cheque butts. I note further in Taufa Tatafu’s evidence that she said the spreadsheets that had been provided most of it was received from Fiji because she had made a request to provide spreadsheets that the accused had sent to them for the payroll which would have been signed spreadsheets, and also those spreadsheets were printed from the accused’s laptop which she had been working on. That laptop, she said, to which she did not have any access. I am satisfied that the documents that were originals were handed to the police as Mr Hunt said two year ago but they had been lost by the police. Some documents had been returned and were exhibited as exhibit 3 but did not contain the attendance sheets, the signed spreadsheets, or the originals of cheque butt entries. I consider, as such, the copies were properly admitted under section 67(a) and section 64(b) if the Evidence Act which reflects common law and the exception that applies for lost documents, the spreadsheets and the cheque butts were produced by photo copy process or from the computer used by the accused as Taufa said and were reliable copies of the originals. The prosecution are entitled to rely on these documents to prove the case for theft and false accounting against the accused.
    
51. I am satisfied that the attendance records, spreadsheet, and cheque butts are true copies of relevant documents held by Tanoa as business records, and were properly proven in the case of the register of attendance and spreadsheets by Mr Hunt, who was familiar with these documents and in the case of cheque butts by Taufa Tatafu who had been an employee of Tanoa, and had been associated with the accused in the payroll and distribution of wages since her employment in October 2015. Further, she had examined the various relevant records; attendance sheets, spreadsheets, and cheque butts in preparation for her schedule of “non-existent worker” produced as an exhibit. Further, relevantly the cheque butts produced in association with the various relevant spreadsheets produced containing the accused’s name and additional or “ghost” names were coincident in value evidencing that the content of the computer generated spreadsheets (albeit unsigned) were the ones that Tanoa in Fiji must have acted upon and provided funding to Tonga to enable the latter to cash significantly large cheques to accommodate the payroll and meet the employee’s wages. I do not accept Mrs Tupou’s suggestion that the butts lack authenticity, or could have come from anywhere and should not be relied upon. Not only were they contained within the business records of Tanoa but they record cheque transactions for large amounts which are coincident with the amounts claimed in the relevant spreadsheet for the relevant period and in my view are plainly authenticate.
    
52. I am satisfied that the evidence was properly admitted as secondary evidence and properly proven in evidence as being true copies of relevant documentation that had been lost and was no longer in possession of Tonga, as I have said. The case of Manu (supra) is distinguishable because there the invoices were not proven or introduced into evidence through an appropriate officer. That is not the case here. I see no reason to revisit my earlier ruling. Likewise, I see no reason to suggest that the accused was in anyway prejudiced by the fact that the Crown was unable to produce signed copies or originals of the spreadsheets that had been sent to Fiji, which I was informed were amongst the documents that had been given to the Police, and had been lost by them as I have said.
    
53. The case against the accused was that she had been employed by Mr Hunt for some years at a different enterprise owned by him before he, together with the accused, took up employment with Tanoa in what was a significant undertaking for Mr Hunt namely the refurbishment of what had become known as the Tanoa, hotel. I am satisfied that the accused was a trusted employee of Mr Hunt’s and Tanoa and he relied upon that trust when she was given the role of being in charge of the preparation of the weekly payroll of what were essentially it seems labourers or workmen associated with the refurbishment.
    
54. Although in the initial stages of the refurbishment it seems that wages were derived from typed lists of employees, later from as early as April 2015, and certainly by the period first alleged here namely the week ending 22nd may 2015, spreadsheets containing details worker’s names, hours worked overtime and rates were prepared. The spreadsheet ended with a total cash amount which constituted the wages required to meet worker’s wages for that week. The attendance records or register as it was known was compiled by the employee who took the roll call. This varied but for much of the time a witness, Mr Mo’ale Finau, had this responsibility. I am satisfied that the evidence revealed that a Mr Iteni Maile, who was a foreman of labourers, would from time to time instruct others to do the roll call, and it was his job also, if new employees were taken on that had been approved either by himself or Mr Hunt, to advise Mo’ale or other keeper of the attendance record so that the name and details of the employee were recorded in the attendance register. It was the attendance book I am satisfied that was the source document for the recording of employees names in the spreadsheets that was the primary document and I consider the only document material to the issue of whether a person had worked during the week or not. It may be as Mrs Tupou says that there were other documents also for example lists of overtime which Taufa had mentioned as being received also from Maile or others which she said could have been destroyed after the information was inputted into the spreadsheet. It is the attendance register, however, that provided the integrity for the spreadsheet entries of employees for the relevant weeks and entitled them to be paid as Mo’ale said in his evidence. It seems also from the evidence given by Taufa Tatafu that details of new employees would be forwarded to Fiji for registration and given a number.
    
55. There was evidence that spreadsheets were sent to Fiji and proceeds for wages based on those spreadsheets sent to Tonga so that a cheque could be drawn and wages distributed to employees by the accused and or a subordinate or assistants as I have said. Generally, it seems they would be signed either by Mr Hunt or the accused and then sent to Fiji for payment of wages to be arranged. There were two employees during this period who had responsibility to assist the accused in the preparation of the payroll at various times. The first was Elia Kafoa or Sita as she was called throughout the trial. She had worked for Tanoa in association with its acquisition of the Lagoon motel but from June 2015 to about October 2015 had assisted the accused in the preparation of the payroll. In October 2015, Taufa Tatafu was employed to assist the accused and she remained with Tanoa until after the accused had been dismissed. Both women gave evidence that they had inputed information into a spreadsheet on their computer of hours relating to employees whose names were already on the spreadsheet. When they had completed their work the spreadsheet was sent to the accused, it seems by email. Later, both said that they were tasked the distribution of the wages after a cheque had been drawn by Tanoa in Tonga for that purpose and both said the spreadsheet used by them for the distribution was the one they had prepared. They were able to distinguish the spreadsheet they had prepared. They were able to distinguish the spreadsheet they had prepared from the spreadsheet for the corresponding period for that pay period that had been sent to Fiji and for which payment had been received by the fact that the accused name appeared as an employee on that spreadsheet and further there appeared additional “ghost” names. They were adamant those were not the spreadsheets they had been given when distributing the wages.
    
56. It was suggested to Ms Tatafu that she was a liar and had herself compiled the offending spreadsheets so as to protect Iteni Maile who she admitted she had an affair with. She denied this and I accept her denial that she had manufactured any spreadsheet to protect Mr Maile who died before the trial, or had in anyway acted corruptly. The death of Mr Maile is a topic I will come back to later, in this ruling. I found her generally a reliable witness and one who appeared quite forthright in response to cross-examination by Mrs Tupou about Iteni Maile whom she admitted consumed methamphetamine and was a heavy drinker. There were some inroads into her reliability on the question of the accuracy of her Summary of Non- existent workers but the discrepancies did not deprive the document of much of its accuracy in so far as the indicted periods now before the Court are concerned. Likewise, there was some suggestion which she later admitted to that her evidence involving a large sum of money that she said she was requested to take to the accused at the Tali’eva bar after hours was not accurate. She admitted this and that it happened on a later date than she had first said namely had occurred on the accused’s birthday on the 4th December, but whilst she may have been incorrect in some of the detail and had given the police a different amount I am satisfied that the accused did request and was given by Taufa a significant sum of money which came from the wages payroll and was considerably more than that claimed as owing under the relevant spreadsheet.
    
57. I also accepted the evidence of Sita who seemed to me to be a careful and reliable witness. She also said that, in the period she was involved with the payroll between June and October 2015, she had been responsible for inputting information on spreadsheets which were sent to the accused. She produced a spreadsheet, exhibit 6, which she said had been used to distribute wages to employees that was different from the spreadsheet upon which a cheque butt record related in terms of the case balance, the presence of the accused name and additional or ghost employees.
    
58. Both Taufa and Sita also gave evidence that they saw the accused take sums of money regularly from cash that was to be distributed to employees. Taufa gave evidence of two large sums she recalled and a third where the accused had summonsed her after work to bring a significant sum of money to her on the day of her birthday when she was in the Tali’eva bar. Although as I have said Mrs Tupou in her cross-examination managed to cause Taufa to admit that she was inaccurate in the sum she gave in evidence (as opposed to the amount she told the police some time later), I was left in no doubt about the integrity of her evidence in general on the point and I accept her evidence that the accused requested and was delivered a significant amount of money that came out of the wages to be paid to workers from the proceeds of the Tanoa cheque drawn to meet wages, over and above what she was entitled to. I accept her evidence that on at least two other occasions she recalls the accused receiving sizable amounts. Likewise, I accept also Sita when she says that it was regular for the accused to take money before wages were distributed to staff, leaving her to distribute the balance to employees using spreadsheet details as compiled by Sita. She said that she was told by the accused when the later rang her about an allegation that she had told Mr Hunt that she had seen the accused put money in her hand bag, that she had not told the accused that she had not seen this as was suggested to her by the defence. She said she had told her she had seen this. Further, she said that was the time the accused had said that the money was for outside contractors. She said that it was not her role to question her earlier about money that she had received. I accept that there is, as Mrs Tupou said, a lack of precision about the money the accused acquired, but the fact that Taufa recalled some large sums and Sita general payments which I accept the accused later told her was for outside contractors when Sita had money represented by the inflated wage claims was taken by the accused for her benefit. I reject any suggestion that either Taufa or Sita took the money and am satisfied beyond reasonable doubt that the accused misapplied the money. I find both that she was the architect of the duplicitous spread sheets send to Fiji whether signed by her or Mr Hunt and her motive for doing this was to enable her to take the excess amounts attributable to the “ghost” employees.
    
59. I accept that both Sita and Taufa as they said used the spreadsheet prepared by them to distribute wages, and not the one bearing the name of the accused as an employee, or containing names which did not appear in the employment book. Had the Fiji spreadsheet been used, it would have become apparent to either that there was an excess amount of money available after payment of staff and this could have excited their attention concerning the unclaimed money. In this regard, Taufa said that she had not appreciated that there was a disparity in spread sheets until shortly before the final period of the accused’s employment when she saw that the spreadsheet prepared by her was different from the spreadsheet on the accused desk which bore her name and contained additional names of employees for the period ending 16th October 2015. She had alerted Mr Hung to this and an examination had commenced.
    
60. I accept Sita also when she said that the accused told her that the money she took was for outside contractors and that Sita had paid those contractors by cheque. I also accept Sita when she said the accused had told her she was paid by Fiji directly as was Mr Hunt, although the evidence does not otherwise reveal whether this was so.
    
61. I have examined all the spreadsheets in the relevant periods now claimed by the Crown to be relevant, as mentioned in paragraph. I am satisfied that there exists evidence that established beyond reasonable doubt that the spreadsheets prepared by the accused were acted upon and the proceeds paid over to Tanoa in Tonga for a wage bill that was inflated in each weekly period by the presence of “ghost” names. Coincident with these spreadsheets exist cheques butts recording amounts of cheques drawn by Tanoa for the amounts claimed in these spreadsheets. I am satisfied that these cheques were drawn once Tonga had been placed in funds by Fiji to enable these cheques to be met. I also note that in periods where there was no cheque butts present although there were spreadsheets prepared containing the accused name and “ghost” names, the Crown elected not to proceed with these; in all these amounted 10 weekly periods between the 26th April 2015 to the 30th October 2015, and an amount totalling $13770.00. Details of these were given by the Crown in a schedule prepared and filed to support the amendment to the sum claimed of $23,039.00. The sum claimed as stolen I observe in the schedule of non–existent workers does not include any sum claimed in the spreadsheet as payable to the accused.
    
62. I am accordingly satisfied beyond any reasonable doubt that it was the accused who prepared the relevant spreadsheets that caused Tanoa Fiji to pay a sum in wages to Tonga that enabled the latter to draw a cheque to pay for wages. I am also satisfied beyond reasonable doubt that each of the spreadsheets contained “ghost” names as stated in the Schedule of non – existent names. The inference, I draw beyond reasonable doubt, was that the accused pursued this pattern of conduct so as to obtain the cash represented by the inclusion of the “ghost” names.
    
63. The only remaining question is one that was raised by me during the hearing that is whether the evidence presented by the Prosecution suggests a reasonable possibility that Iteni Maile gave details of additional employees to the accused and did not cause these details to be given to Mo’ale or other relevant keeper of the attendance register, so that they were not recorded in the register no were these communicated to either Taufa or Sita. I have examined the records of each of these witnesses in the light of Mrs Tupou’s assertion in her memorandum at para 2 (c) that Sita had said if Iteni had a list he would provide it directly to Selemana and not her. I do not consider there is any evidence that suggests that possibility or raises a foundation reasonably suggesting in this case, that may have occurred. Taufa rejected the proposition that Iteni Maile came with a list of workers to the accused who would work on that. She said new names would only be brought to the accused and her. It was not every week he would bring new names. She did not support the suggestion put to her by Mrs Tupou that Maile would bring the names every week to the accused. Mrs Tupou is correct in her observation that an answer given by Sita may have conveyed the impression that Sita agreed that Maile had given the accused names which he had not communicated to others. The record, I have, reads;
    

“was there a time that Iteni Maile would also have input Into his alternation to the spreadsheet of other workers of his?

No

So you don’t have knowledge of that?

No

So he would bring his changes of alterations to Mana?

Yes and not you?

No”

However after further close reading of the transcript, I am satisfied she also rejected the possibility that mailed had given the accused additional names that she did not know about. She said that she could not ascertain whether he had done so for the reason that if those names had been given by Iteni to mana those names would have to have been given to her to be registered on attendance. She said she would then have altered the spreadsheet according to the advice because that as the only spreadsheet that she used in order to make accurate wages or pay. She said that she had received such information from the accused had changed her spreadsheet before handing it over to the accused. She said that she would not have expected a second spreadsheet to have been created with additional information because the spreadsheet she created and passed over was the one that distribution of cash pays that “we” put in the packages depends on. She again, as a consequence of it being suggested she was a liar by Mrs Tupou, repeated that she did not know what went in the spreadsheet to Fiji but she did not believe that there should be a second one because the spreadsheet she created was the one she used for the distribution of the labourer’s pay. She said that, if the spreadsheet had been forwarded to Fiji was the one she had used to distribute wages she would called the extra names also to distribute their wages. She said that she did not distribute according to any spreadsheet commencing with the accused’s name. It is, in my view, plain that this witness also rejected the possibility that Maile had given the accused additional names of employees without her knowledge. Mo’ale Finau said that, if there were new labourers, their names must be written down in the attendance register because their pay would depend on what is written in the attendance register. He said that he did not believe that anybody should be paid if his name did not appear on the attendance register. This further reinforces my view that on the evidence there is no foundation for a suggestion that the accused acted legitimately by compiling a spreadsheet that contained names which were not in the attendance register for the relevant period and unknown to Sita or Taufa.

64. The accused, as she was entitled to do, did not give evidence to about the subject of Iteni Maile giving her additional names. I record I draw no adverse inference against her, in this regard or in any other for her silence. However, in my view there is no evidence before this Court that could be said to lay a credible evidential foundation that the accused had drawn up a second spread sheet or a revised spreadsheet containing addition or “ghost” names that were not contained within the attendance record for the relevant period based on information received from Maile that was not included in the attendance register or known to Sita or Taufa. Accordingly, whilst I suggested to counsel for the prosecution, Mr Aho, that the absence of Mr Maile might have diminished the Crown’s position had there been such a foundation, I do not consider this is the case. Nor would it have been consistent with the well-known practice of Tanoa concerning the he need for the recording of employees on attendance sheets still less their omission on a very regular if not routine basis. To do so was to undermine the security afforded Tanoa by the register. I accept the evidence of Taufa and Sita that distribution of wages was not carried out with the use of a spreadsheet that include the accused’s name and additional names. I infer that this can only have been because the accused did not want them to know about the revised or additional spreadsheet that she had created and had sent to Fiji because of the risk that they would appreciate something was amiss as happened when Taufa first learned of the additional spreadsheet and told Mr Hunt about it leading to their inquiry.
    
65. I repeat that I have not drawn any adverse inferences against the accused either for any alleged silence in the face of Mr Hunt’s allegations for reasons I have stated. I record that I accept that Mr Hunt, as he said in his evidence, was attempting to assist a known and formerly trusted employee in the correspondence that was entered into and that for him this must have been a difficult time before a complaint to the Police was made by Tanoa. I have taken all that Mrs Tupou had submitted concerning the failure of the Crown to produce originals or other documentation but aside from the fact that, in my view, the secondary evidence was properly proven and admissible, I cannot see that the accused had suffered any prejudice or been denied a fair trial in the non-production of the original attendance registers sheets, signed spreadsheets, or the original cheque butts, and the secondary evidence plainly evidenced her concerted pattern of the deceit over the period.
    
66. I consider beyond reasonable doubt that the accused produced knowingly, on 17 occasions between the 22^nd May 2015 and the 11^th December 2015 (as finally particularized by the Crown in its schedule leading to the amendment of the indictment and a claim of the theft of $23,039.00), false documents namely spreadsheets with “ghost names” in them, and is guilty of false accounting as alleged contrary to section 159(a) of the Criminal Offences Act.
    
67. I consider also that, during this period, beyond any reasonable doubt she entered into this pattern of deceit so as to steal the proceeds of the inflated cheques for wages that were drawn by Tanoa during this period. There can be no other reason, in my view, why she should do this but to gain from the inflated wages attributable to the false spreahsheets containing “ghost” names that had been prepared by her for Fiji. Accordingly, I find beyond any reasonable doubt that, being employed as an administration officer for Tanoa Hotels (Tonga) Limited, she knowingly took the sum of $21, 299.00 (being the amount of $23039.00 alleged by the Crown as stolen for the indicted periods less the amounts deducted for the reasons set out in para 23), which was the proceeds of cheques drawn by Tanoa to meet wages and fraudulently or dishonestly and without colour of right applied this to the use of another namely for her own use and enjoyment without the permission of her employer Tanoa.
    

VERDICT

Count 1 – theft – guilty

Count 2 – false accounting – guilty

She is convicted on both counts to await sentence.

C. B. Cato
DATED: 19 JANUARY 2018 J U D G E