Saolele v Attorney General [2007] WSCA 4; CA 06, 15 (14 September 2007)

COURT OF APPEAL OF SAMOA
HELD AT APIA

BETWEEN:

FITI SAOLELE
Appellant

AND

ATTORNEY-GENERAL OF SAMOA
Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Salmon
Honourable Justice Paterson

Hearing: 05 September 2007

Counsel: S K Ainu’u for Appellant
S L Petaia and K Koria for Respondent

Judgment: 14 September 2007

JUDGMENT OF THE COURT

Introduction

[1] Vaai J convicted Fiti Saolele on ten counts of theft as a servant and ten corresponding accounts of falsifying accounts with the intend to defraud. The total amount involved was approximately $60,000. The offending occurred over two years. Ms Saolele now appeals the convictions.

Background

[2] Ms Saolele was employed for seven years by the Ministry of Health (MOH) in its Accounts Section. One of her duties was to process payments to pay for supplies provided to the MOH.

[3] The MOH had a procedure for ordering supplies and for payments for such supplies by the Ministry of Finance (MOF). Vaai J in his judgment set out these procedures in detail. It is not necessary in this judgment to provide the same detail but certain steps are relevant to the determination of the appeal.

[4] The following is a summary of the relevant steps:

(a) After a written requisition from a Division the stores division of the MOH prepares a form (Ty11) which sets out the quantity and price of a good. There is a system of approvals and registration of the Ty11 both in the corporate section of the MOH and in the stores division. The Ty11 which by then includes the quantity of goods the price and the name of the supplier is sent to the MOF which issues a purchase order.

(b) The MOF retains the original Ty11 and the copy of the purchase order and sends copies of the purchase order and the Ty11 back to the MOH which then sends the purchase order to the supplier.

(c) Upon receipt of the goods from the supplier the MOH issues a Ty22 which confirms receipt of the goods. There is a register of Ty22 numbered in consecutive order.

(d) To effect payment the accounts division of the MOH, in which Ms Saolele was employed at the relevant times, then prepares a general disbursement voucher known as a Ty1. The Ty1 is based on the Ty11, the purchase order and the invoice received from the supplier. An authorised officer of the MOH certifies on the Ty1 that according to the best of the officer’s knowledge and belief the account is true and correct in every particular, that the charge is reasonable, and that the goods have been satisfactory supplied and that the amount is now properly due for payment. The Ty1 together with the purchase order and invoice is sent to the MOF which then approves payments and pays the supplier.

[5] Vaai J in his sentencing remarks notes that a number of documents in this case including Ty1s, Ty11s, purchase orders and invoices could not be located during the investigation.

[6] The charges against Ms Saolele were that on ten occasions she altered or had altered Ty1s which led to sums of money being paid to a company Cleansol Chemicals (Cleansol). The Crown alleged that she had a relationship with the General Manager of Cleansol.

Ground of Appeal

[7] Ms Saolele originally had five grounds of appeal but at the hearing she proceeded on one only. It was expressed in the notice of appeal as:

The Court erred when it relied on the evidence of one witness instead of requiring the prosecution to produce the Ty22 register to prove that the goods were never delivered.

In submissions before this Court counsel for Ms Saolele submitted that the failure to tender the Ty22 register in evidence created a gap in the chain of the evidence required to convict Ms Saolele beyond reasonable doubt.

[8] This Court considers that the ground of appeal is in effect that the judgment should be set aside on the ground that is unreasonable or cannot be supported having regard to the evidence. The specific issue is whether, notwithstanding that the Ty22 register was not tendered in evidence, there was evidence before Vaai J which, if accepted, supports his verdicts.

The judgment

[9] The chief witness called by the police (witness Falevaai) was as the Judge noted an accomplice who had been given indemnity from prosecution by the police in return for his co-operation. By his own admission he was the culprit who did the false alterations to most of the Ty1 vouchers. In fact he altered all but one of the ten Ty1s. The Judge noted that his evidence at times if not most of the time could be considered to be suspect. His demeanour was irritating and annoying but the Judge concluded that most of his testimony when considered together with other testimony made good sense, was logical and supported by other evidence. Another witness, a reconciliation clerk in the MOH, did find discrepancies in some of the vouchers which related to payments. He did not report these discrepancies to his superiors because he told the Court he was given moneys by Ms Saolele not to report them. Ms Saolele gave evidence and denied the accusations against her. The Judge did not believe her. He concluded that her evidence lacked credibility and sincerity.

[10] The Judge noted that Mr Falevaai was an accomplice and directed himself that it was dangerous to convict on the uncorroborated evidence of an accomplice. Nevertheless, he obviously accepted most of the evidence given by Mr Falevaai and convicted accordingly.

The charges

[11] Against the above background it is necessary to consider whether the evidence which the Judge accepted was sufficient to convict on each charge to the required standard of beyond reasonable doubt. The informations were in pairs, one alleging falsifying an account to pay an amount to Cleansol with the intent to defraud funds belonging to the MOH being followed by another alleging theft.

[12] It has been necessary for the Court to consider the evidence in respect of the ten incidents. There were three variations to a theme and a summary of the evidence adduced on each theme can be given by referring to the prosecution’s case in three instances:

(a) One set of charges was based on a legitimate Ty1 in favour of BOC Gases for the amount of $1,144.36. It was registered as HG3458 in the Ty1s’ register. Mr Falevaai prepared the Ty1 voucher and forwarded it for the necessary approvals, signature and registration. The next day Ms Saolele gave him back the same Ty1 but with the name of BOC Gases, the invoice references and the amount due all twinked out. On her instructions, he entered Cleansol as the claimant and filled in the rest of the details so that an amount of $8,150.36 now appeared to be due to Cleansol. When Ms Saolele brought the Ty1 back to Mr Falevaai for alteration it had already been certified for payment and registered for the original amount of $1,144.36 in the Ty1s’ register. The amended Ty1 was then taken by Ms Saolele to Treasury. A cheque payable to Cleansol for $8,150.36 was uplifted from Treasury by Ms Saolele and Mr Falevaai. The Judge accepted that they delivered the cheque to the General Manager of Cleansol. Mr Falevaai’s evidence was that Ms Saolele received $1,000 from Cleansol of which she gave him $100. Mr Falevaai also said that the MOH did not receive a requisition for the goods and this told him they were not supplied. He said the division did not need the order.

(b) In another case, two Ty1s were given identical registration numbers. The second Ty1 was in favour of Cleansol for the sum of $2,480.50. The evidence was that after ascertaining the last registration number in the register of Ty1s Ms Saolele gave the second Ty1 in favour of Cleansol the same number. It was not registered in the register and no Ty1 for the amount paid was so registered. Ms Saolele provided the invoices and purchase order to support the Ty1 which was not so registered. No evidence was given that the goods were not received.

(c) In a further case there was a genuine invoice from Cleansol which was the basis of a Ty1 which was approved and registered. Ms Saolele, after registration, instructed Mr Falevaai to add details of a further invoice to the Ty1 and this alteration was not registered in the register of Ty1s. The amount of $6,734.25 was added after the Ty1 had been approved and registered and it was Ms Saolele who provided the additional invoice. No evidence was given that the goods referred to in the additional invoice were not received.

[13] An essential feature of all ten incidents was that the relevant Ty1, which contained false details, was not registered in the Ty1 register of the corporate Services division of the MOH. Three methods were used to create the Ty1s on which the payments were made:

(a) Alteration of a Ty1 after it had been approved and registered but before it was delivered to the MOF for payment;

(b) Creation of a new Ty1 which was not registered but was given the same registration number as a registered Ty1 which had been approved by the designated officer.

(c) Adding further invoices and amounts due to a legitimate Ty1 in favour of Cleansol after the correct Ty1 had been approved and registered.

Not one of the 10 Ty1s which formed the basis of the charges was registered in the form that went to the MOF to effect payment.

[14] It is correct that when giving his evidence in relation to the 10 incidents Mr Falevaai did not in all cases give evidence that the goods referred to in the falsified Ty1 had not been delivered, although in some cases he did. Mr Ainu’u’s point is that the Police were required to produce the Ty22 register to prove non-delivery. In the absence of such a register the Judge did not have evidence on which he could determine that the hospital had not received the goods.

[15] There are two reasons why this appeal cannot succeed. First, there was evidence that the supplies were not received. Although Mr Falevaai when giving evidence-in-chief about each incident did not in each case state that the goods were not received under cross-examination he did gave such evidence. He said that orders could not be made without a requisition and that in none of the cases was there a requisition. This meant that the supplies were not ordered; they could not have been delivered. Further, when pressed about the possible receipt of the supplies he said:

"But what I did with Fiti, when we arrived the purchase order were ready including Cleansol we dispatched all the purchase order other orders except Cleansol we did not dispatch, the only thing Fiti needed, the pink copy or the red copy of the purchase order we removed but the rest of the original Ty11 and its copy and the yellow blue and white copy which is the original Fiti threw it away on the day we went to pick it up that is exactly why I want to state the orders were not supplied because the thing we needed to record our files to identify this order had been supplied were not there..."

[16] Secondly, it is obvious from the evidence that there was a systematic alteration of Ty1s after registration or creation of new Ty1s which were not registered in the Ty1s’ register. Ten such incidents where one company was the payee on each occasion are sufficient to exclude any inference that these were payments to which Cleansol was entitled. There was evidence of non supply in respect of some of the transactions. This is a case where the Judge was entitled to consider the methods of the offending and conclude that in no case did Cleansol supply goods of the value of the fraudulent Ty1. There was a consistent pattern of offending to defraud the MOH.

The charge

[17] Although not raised by counsel the Court is of the view that the correct charges were not laid in relation to the alleged thefts. The New Zealand Court of Appeal in R v Wilkinson [1999] 1 NZLR 403 determined that a credit in a bank account is not something capable of being stolen. It was not appropriate to charge Ms Saolele with theft.

[18] This court has the power to ‘make such... order as justice requires’: s164N(4) of The Criminal Procedure Act 1972. The Supreme Court has power to amend an information by substituting one offence for another: s36(2), of The Criminal Procedure Act 1972. There is no restriction on when this substitution may be made. In this Court’s view there is no reason why this Court can not, if it is satisfied that the Judge’s findings are such that Ms Saolele is guilty of another charge, substitute that other charge. We find nothing in s9 of the Constitution which leads us to a different view. Ms Saolele defence was that she did not falsify the Ty1s or ensure the non registration of the false Ty1s. Her defence would not have been different if the charges had been false pretences rather than theft. On the facts on which she was found guilty of theft she would have inevitably have been found guilty of obtaining by false pretences under s89 of the Crimes Ordinance 1961. There is no prejudice to her by substituting the informations as the Court proposes to do.

[19] The operative portion of information number S102/04 is therefore amended to read:

"... on the 16th day of May 2003, Fiti Saolele, being a servant of the Ministry of Health, with intent to defraud the Ministry of Health, used a falsified Ty1 registered number HE-3458 after it had been registered, to induce Treasury to execute a valuable security, namely a cheque of $8,500.30 payable to Cleansol Company.

[20] Appropriate amendments will be made to the other nine informations brought under the provisions of S85 & 86 of the Crimes Ordinance 1961.

[21] Ms Saolele is convicted on all ten informations as amended.

[22] This case highlights an anomaly in the provisions of the Crimes Ordinance 1961. On one view of the matter the offences on which Ms Saolele has now been convicted are no less serious then the offences on which she was convicted by Vaai J. Yet the maximum penalty for an offence under S89 (False Pretence) is 3 years imprisonment while if the charges had remained as theft as a servant charges the maximum penalty would have been 7 years imprisonment. This is a matter which should be drawn to the attention of Parliament.

The sentence

[23] No appeal against sentence was pursued at the hearing. However, in view of the substitution of charges and the lower maximum penalties which apply to the substituted charges the Court asked counsel to make submissions on whether the sentence should be revisited in the event of the Court substituting new charges under s89 of the Crimes Ordinance 1961. Both counsel did so.

[24] Mr Ainu’u for the appellant submitted on the basis of P v Filipo [2007] WSSC18, where $800 was taken from an employer and a sentence of seven months imprisonment imposed, that a similar penalty was appropriate in this case.

[25] Counsel for the prosecution submitted that penalties for false pretences range between a fine of $500 and a custodial sentence of two years. In this case it was submitted that taking into account the breach of trust, pre-mediation, the period of the offending, the multiplicity of the offending, lack of remorse and that government money was involved, a sentence of two years imprisonment is appropriate.

[26] As noted in paragraph 22 the offences on which Ms Saolele has now been convicted are no less serious than the offences on which she was originally convicted. There are two matters which lead us to reduce the sentences. First, the maximum term of imprisonment is three years for the false pretences’ charges whereas it is seven years on the equivalent theft charges. (The maximum term under the falsifying charges is five years). Secondly, the evidence suggests Ms Saolele was not the principal offender. In the circumstances and adopting a totality approach an appropriate sentence is two and a half years imprisonment on each of the charges.

Result

[27] The appeal against conviction on the falsifying account changes (the S98 charges) are dismissed.

[28] Charges under S89 of the Criminal Ordinance Act 1961 are substituted for the theft charges and Ms Saolele is convicted on all ten substituted charges.

[29] Ms Saolele’s sentence on all charges is reduced to 2½ years imprisonment to be served concurrently.

Honourable Justice Baragwanath

Honourable Justice Salmon

Honourable Justice Paterson