Eteuati v Police [2006] WSCA 8 (26 April 2006)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

BETWEEN

FA’AFETAI ETEUATI
Appellant

AND

THE POLICE
Respondent

Coram: The Honourable Justice Ellis

The Honourable Justice Gallen

The Honourable Justice Salmon

Hearing: 24 April 2006

Counsel: Mr. R S To’ailoa for the Appellant

Mr. K Koria and Miss. P Chang for the Respondent

Judgment: April 2006

JUDGMENT OF THE COURT

[1] This is an appeal against conviction by Faafetai Eteuati who on the 10th June 2005 was convicted in the Supreme Court, on six charges of theft as a servant.

[2] The appellant was originally charged with sixteen charges of theft as a servant under ss.85 and 86(1)(g) of the Crimes Ordinance 1961 and twenty-four charges of falsifying accounts under s.98 of the same Ordinance. At the commencement of the trial, on the 12th April 2005 the prosecution, with the leave of the Court withdrew twenty-six of those charges with no objection on behalf of the appellant. That left seven charges of theft as a servant, and seven charges of falsifying accounts.

[3] The Chief Justice in a careful and detailed decision found that six of the charges of theft as a servant had been proved and he convicted the appellant on these. He dismissed the charges of falsifying accounts.

[4] The grounds of appeal were as follows:-

(a) That the Trial Judge had erred in law in accepting the documentary evidence adduced by the Auditor (the key witness for the prosecution) when such documentary evidence should have been ruled inadmissible on the basis of hearsay.

(b) Alternatively, the Trial Judge had further erred in law by failing to acknowledge that such documentary evidence could only have been admitted as original evidence and as such, did not offer proof as to the truthfulness of their contents.

(c) The Trial Judge had erred in law by placing reliance on the hearsay evidence of the Auditor in the absence of any independent evidence to prove that the entries were in fact made by the accused.

(d) The Trial Judge had erred in law in accepting hearsay evidence from the Auditor of a dispute by US Postal Services of its account, without independent evidence to prove such point.

(e) That the Accused had been convicted based on an assumption that just because she had admitted to receiving the monies from the customers concerned, therefore she must have been the one who falsified the accounts in order to pocket such monies for herself and thereby committing theft without any direct evidence to show who in fact posted the accounts concerned to the wrong customers. Proof beyond reasonable doubt of the identity of the person who posed the accounts to the wrong customers would have also provided proof beyond reasonable doubt of the identity of the person who stole the monies. Why else would the wrong postings be made if not for the very reason of benefiting thereby.

(f) If such accounts were posted to other customers, no loss would have been suffered by Polynesian Airlines and, therefore, the prosecution did not prove such ingredient.

(g) That the deficiencies in the prosecution evidence meant that the prosecution did not prove their case beyond reasonable doubt, and the charges should have been dismissed.

[5] In this Court Counsel for the appellant indicated that essentially the issues on appeal were:-

(a) Whether the Chief Justice was correct in law in accepting documentary and hearsay evidence.

(b) Whether the charges of theft under ss. 85 & 88 Crimes Ordinance 1961 were proven beyond reasonable doubt.

[6] We take the facts from the judgment of the Chief Justice setting out the reasons for his findings. The background to the charges was that the appellant had been employed as an accounts clerk by Polynesian Airlines in the accounts receivable section of the finance department. That section consisted of three staff members. They were the accused, as accounts clerk, a senior accounts clerk, and a supervisor. They were responsible to the manager financial services, and the general manager of the finance department.

[7] Their responsibilities included the preparation of credit travel forms for approval by the manager financial services, or the general manager of the finance department. If any person wanted to travel on a Polynesian flight, but did not have the funds to pay for the air fare, that person could make a request to the accounts receivable section for approval to travel, but pay at least part of the air fare later. The Chief Justice found, that the evidence indicated, that in practice, a member of the public who wished to travel by credit travel, would make a request accordingly to any one of the three staff members of the accounts receivable section. The staff member to whom the request was made would then fill in a credit travel form with the requisite detail and submit it to the manager financial services or the general manager of the finance department for approval. If approval was granted, that would be taken to the ticketing department where the airline travel tickets would be issued. At the material times the airline policy was that any person who was approved for credit travel must pay a deposit equivalent to fifty percent of the total airfare before a travel ticket was issued. The Judge noted however that this policy might not always have been observed.

[8] After a ticket had been issued by the ticketing department a copy was sent to the accounts receivable department, which would put it into a computer. The computer would then generate an invoice showing the name of the person to whom the ticket had been issued, the credit ticket number, and the amount of the airfare. The Judge referred to further procedures but it is unnecessary to note other than that from this material it was possible to deduce which member of the accounts receivable staff had entered the material into the computer from which an invoice was generated, but not who supplied the data from which the computer produced an account shown in the accounts transaction ledger. All three members of the section were shown on the evidence to have fed data into the computer, which produced the accounts transaction ledger.

[9] There was evidence that all three members of the section had accepted payments from customers and issued receipts, although this was contrary to company policy, which was that receipts were issued only by the cashier.

[10] There was evidence before the court that a number of people had made payments to the appellant and had not received receipts for them. An audit enquiry revealed that a number of people claimed to have made payments to the appellant without receipts and which the company claimed had not been credited to them through the company accounts.

[11] The appellant denied that she had retained such monies and claimed in evidence that in each case she had passed the monies received on to one or other of the two other employees of the section.

[12] After a careful analysis of the evidence before him, the Chief Justice indicated that he did not believe the appellant and convicted her as already indicated.

[13] The first argument on which counsel for the appellant relied was that a substantial part of the case for the prosecution rested on hearsay evidence. This argument depended on the fact that a principal witness for the prosecution was an auditor who had carried out an audit into the credit travel transactions but who did not produce the original documents audited. The purpose of raising the hearsay argument was to ground an argument that the prosecution had failed adequately to prove that money received by the appellant had not been credited through the company accounts.

[14] This argument gives rise to some difficulties as it is by no means clear which of the statements made by the auditor were admissible statements of personal observation, and which may be classified as hearsay. We prefer therefore to deal first with the second argument on which counsel relied.

[15] In her evidence the appellant indicated that she had handed over the payments made to her to either one or both of her superiors, the supervisor, or senior accounts clerk but had no recollection in respect of individual payments as to which one to whom payments had been made.

[16] The supervisor was called as a witness and indicated that if any money had been given to him he would have issued receipts. This did not amount to a denial of having received monies, but the prosecution relied on evidence of the auditor that no record of such receipts existed. In this regard the contention as to hearsay has significance.

[17] The documentary evidence placed before the court left much to be desired. No receipt books were produced and none of the relevant application forms could be located. There was evidence that sometimes receipts remained in the books.

[18] More significantly however the Chief Justice noted that any comments made by the senior accounts clerk, to either the auditor or the supervisor, were hearsay and inadmissible. He was plainly right in this conclusion. The supervisor was called to give evidence, but the senior clerk was not. There was therefore no admissible evidence of any denial by the senior accounts clerk of any payments being made to him by the appellant.

[19] The Chief Justice noted that the senior clerk had been the object of prosecution. He was charged with offences under s.99 of the Crimes Ordinance 1961 alleging that he had made in the course of his work, various wrong postings of debits and credits with intent to defraud the employer, Polynesian Airlines company. After a defended hearing he had been found guilty on 36 charges and sentenced to imprisonment. He appealed to this Court and by a judgment dated the 17 December 2004 the conviction was quashed and a verdict of acquittal entered on all charges.

While not amounting to evidence in this case there are a number of statements contained in the judgment in that case which in the interests of justice must have some bearing on this. We refer to the following:

'Mr. To’ailoa submitted that the various documents, such as invoices, credit notes and other records were admitted as original evidence only, and as such did not offer proof as to the truthfulness of their contents. Counsel for the respondent had no objection at the hearing to this submission (p122 of the transcript of proceedings). The respondent relied on the evidence of the auditor without independent evidence to prove that the entries were in fact made by the appellant. The only other prosecution witness was Mr. Chris Healey who stated that the computer accounting system was only accessible using a secure username and password specific to each individual in the office. Once logged in, the individual’s username would appear on any transaction they had posted into the system. Mr. Healey stressed that the company’s policy was that all passwords and usernames were to be kept confidential and secret. However, once the computer is logged in by an operator using his or her password anyone can use it and there was evidence called for the defence that about 7 or 8 workers from other sections would help out with postings on a regular basis. They had no passwords so would have to rely on the passwords of the appellant or the other two workers who had passwords. It was possible that some wrong postings had been done by them but the large number of wrong entries over a period of 3 years all in the name of the appellant made him a prime suspect.

The Auditor knew nothing of these other workers but this evidence was not rebutted. Furthermore, Justice Vaai in the passage from his summary quoted above expressed the view that there were others involved.

[20] The supervisor accepted that some payments may have been made to him, which gives some credence to the claim of the appellant that the same may have applied to the senior accounts clerk, but without any evidence that, as in the case of the supervisor, receipts would have been issued. This has some importance where the actual receipts on which the auditor relied were not before the court. In addition there is some suggestion in the evidence that receipts were not always issued, and the system as operated seems to have been lax in this respect. In our view there is a significant break in the prosecution chain of evidence, where a possible recipient of such monies from the appellant was not called. We note also the comments in the Court of Appeal decision in his case set out above.

[20] Although the prosecution relied on the absence of a receipt, as has already been indicated this does not exclude the possibility that for some reason the senior clerk did not issue one. The absence of a receipt can not be conclusive where the receipts themselves are not produced, and the only evidence as to their lack of existence is the statement of the auditor that she did not locate any.

[21] The Chief Justice indicated that he did not believe the appellant, and of course he had the best opportunity of observing her and hearing all the evidence, but counsel were unable to point to any material other than that to which reference has already been made that might be considered as supporting such a conclusion. In other words, there was no independent evidence to reinforce any impression left on the court. The Chief Justice was also no doubt influenced by the prosecution submission that invoices were posted for amounts less than that received by the appellant. The batch of invoices from which these incorrect invoices were drawn were associated with the private password to the computer of the appellant. In addition there was evidence that the appellant had access to the customer’s accounts at any time. These are highly suspicious circumstances and no doubt combined with the fact that the Chief Justice did not believe the appellant led to her conviction.

[22] We have looked at these aspects of the case with some anxiety bearing in mind the careful and detailed consideration by the Chief Justice of the submissions and evidence, and the advantage he had in hearing the witnesses, but we are nevertheless concerned over the failure of the prosecution to call the senior accounts clerk to controvert the allegation of the appellant that she paid the missing funds either to him, or the supervisor, coupled with the acceptance by the supervisor that the appellant could have paid such funds, albeit in his case such a payment would have been followed by the issue of a receipt. This has to be a significant break in the chain of proof which the prosecution must complete to establish proof beyond reasonable doubt particularly bearing in mind the fact that the senior clerk had been himself the subject of a prosecution, in which evidence was given he was responsible for false postings.

[22] This conclusion is reinforced when it is considered in relation to the documentary evidence, which lacks some credibility when the gaps in it are taken into account as well as the complaint as to possible hearsay.

[23] We therefore conclude that the appeal must be allowed and the conviction and sentence quashed. In the circumstances of this case, bearing in mind that the principal reason for the conclusion is the unexplained failure of the prosecution to call a witness who might have removed all doubt there will be no order for new trial. The conviction and sentence are quashed.

Honourable Justice Ellis

Honourable Justice Gallen

Honourable Justice Salmon

Solicitors

Toa Law for the Appellant
Attorney General’s Office, Apia for the Respondent