Police v Pio [1999] WSSC 50 (12 April 1999)

Some days ago I concluded a trial by judge alone and it only remains for me to announce my reasons for my verdicts.

The accused was charged with eight counts of theft as a servant. It was alleged that he committed the several offences on various dates between the 22 July 1998 and 26 August 1998. He was, at the time of the alleged offences, employed as an Accounts Clerk with Televise Samoa. He had started working with Televise Samoa in May 1997. He was in a position of trust during the relevant period, indeed as from May 1998 onwards. It was his responsibility to receive money for his employer (cheques and cash). He had to balance the books and to retain the money in the filing cabinet, the key to which was held by him; and he then had to bank the money. All of these tasks were not, at that time, directly supervised or checked by anyone else.

The accused initially pleaded not guilty to all eight counts. Although, as I have just said, there were eight counts originally, at the end of the trial it only remained for me to deal with six counts, each of which I have, of course, considered separately. In respect of one of the eight counts (file No.248/98), the prosecution tendered no evidence, and that charge was dismissed for want of prosecution. In respect of one other count (file No.255/98), which I shall call count No.7, relating to some allowances totalling $209.00 due to Board members, which money went missing, the accused changed his plea to one of guilty, which change of plea I agreed to. I put that plea of guilty out of my mind when I considered the remaining 6 counts. It might have been otherwise had the prosecution relied on admissible propensity evidence or similar fact evidence or the like. In support of the 6 counts the prosecution relied upon some evidence which I will mention in a moment. For convenience I refer to each of the counts as follows:-

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Count 1:-	File No.246/98 -	$476.00
Count 2:-	File No.245/98 -	$293.66
Count 3:-	File No.247/98 -	$344.70
Count 4:-	File No.250/98 -	$384.00
Count 5:-	File No.249/98 -	$603.24
Count 6:-	File No.251/98 -	$1,051.70

The Prosecution relied upon the oral evidence given by the accused's supervisor in the accounts section, Mrs Faalogoifo Fanua. She gave evidence to the effect that certain sums of money, in the form of cash which had been received and which ought to have been banked, were not banked and to the effect that the accused gave certain explanations for the so-called ''missing money''.

I heard some oral evidence given by the investigating police officer, Constable Tuafono Tofilau, and documentary evidence in the form of a letter (and translation) dated 27 August 1998, (that letter was from the accused to the accountant of Televise Samoa Corporation - Exhibit 1), and a diary/registration book (Exhibit 2), a receipt book (Exhibit 3), a lodgment book (Exhibit 4), and a bundle of bank statements (Exhibit 5).

The accused elected to call no evidence in defence of the charge. He exercised his right not to give sworn evidence in his defence. I reminded myself that no inference adverse to the accused can be drawn from that exercise of his legal right.

Before I proceed further with my reasons for verdict I should mention the Crimes Ordinance.
The relevant provisions of the Crimes Ordinance have been emphasised in the following extracts from s.85 and s.86(1)(g):

''s.85 - Theft defined - (1) Theft or stealing is the act of fraudulently or dishonesty taking ....... anything capable of being stolen with intent -

s.86 - Punishment of theft - (1) Everyone who commits theft is liable to imprisonment for a term not exceeding - ........

(g) Seven years if the property stolen is anything stolen by a clerk or servant which belongs to or is (in) the possession of his employer:......''

The prosecution relied on circumstantial evidence not only to prove the taking by the accused of the several sums of money, those sums of money which, according to the evidence of Mrs Fanua, went missing, but also to prove the dishonesty or fraudulent intent on the accused's part and the mens rea. That circumstantial evidence comprises inter alia:

(1) evidence of opportunity (the accused had the custody of each sum of money and he was the last person shown to have had possession of the money in question - which he was to have received, checked, retained (in the filing cabinet) and banked.);

(2) some evidence of the accused having told lies regarding one lot of money having ''taken from his pocket'', and regarding other money having been ''taken from the filing cabinet'' (and when it was ''taken'');

(3) save and except for count 6 (251/98), count 6 relating to the alleged theft of $1,051.70, the money said by the accused in his written explanation (Exhibit 1) to have ''fallen from (his) pocket,'' there was some evidence to the effect that the accused failed to report the so-called ''missing money'' to his supervisor, Mrs Fanua, or anyone, such failure being, in the circumstances, some evidence of a consciousness of guilt. (He only mentioned that the money was missing when Mrs Fanua carried out her own investigation).

As the prosecution case in some important respects is dependent upon circumstantial evidence (and, in particular, in relation to the stealing of the money in question - the proof of ''the taking'' by the accused ''dishonesty'' and ''fraudulently''), I must say something about the subject of circumstantial evidence. I first say something generally.

When considering circumstantial evidence, I need to consider it all, and I need ultimately to decide whether I can act upon inferences drawn from facts which I do find proved. Ultimately I need to decide whether I can draw the inference of guilt.

When I speak of circumstantial evidence, I mean generally, evidence from which the fact to be proved can be inferred. Circumstantial evidence, as distinct from direct evidence (such as the evidence of an eye witness), has been defined as ''evidence of minor facts of such a nature that the mind is led, by a process of reasoning, to the conviction that some other fact (the fact to be proved) may be inferred.'' Circumstantial evidence may be as strong as (in fact, it may be stronger than) direct evidence. It may be weak.

If there is evidence of two, or three, or more independent facts all pointing in the same direction, that may be more reliable than the evidence of one witness, purporting to give direct testimony of what was said or done, who might be mistaken, or who might be forgetful, or who might be attempting to falsify evidence.

In everyday life we use circumstantial evidence. We put two and two together to reach decisions. So with circumstantial evidence.

When two, or three, or more facts independent of each other are proved and they point in the same direction, the coincidence between them is yet another fact of greater weight to establish an ultimate fact than the two or more independent facts considered separately.

A number of circumstances, each individually very slight, may so tally with (and confine) each other so as to leave no room for doubt of the fact they tend to establish. Of course, the strength of circumstantial evidence lies in the fact that there are a number of different things all pointing in the same direction. If a person be innocent, the chances are that there will be some circumstance turn up which will, as it were, destroy the pattern.

The strength of circumstantial evidence lies in the number of circumstances which all point in the same direction and in the absence of any circumstance which points in the opposite direction. If one circumstance shows that what is alleged to be a fact cannot be (or is most unlikely to be) true, then, of course, the whole pattern is destroyed. As to the weight to be given to circumstantial evidence, that is a matter for the trier of the facts (in this instance, me). As I have said, the circumstantial evidence may be strong or it may be weak. That depends upon the circumstances of the particular case.

How then does circumstantial evidence go towards proving a criminal charge? That question, I always think, can best be answered by having regard to what a famous judge said in England many years ago. That judge was Lord Cairns. His Lordship said:

''In dealing with circumstantial evidence we have to consider the weight which is to be given to the united force (or combined effect) of all the proved circumstances put together. You may have a ray of light so feeble that, by itself, it will do little to elucidate (or light up) a dark corner, but, on the other hand, you may have a number of rays, each of them insufficient, but all converging and brought to bear upon the same point, and, when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.''

In the end, it is for me to say, in a case such as this where there is only circumstantial evidence, whether what I see is completely illuminated to the extent that I do not have a reasonable doubt about it or whether, on the other hand, what I see is blurred, or dull, or reasonably consistent with innocence.

I am not permitted to draw inferences of guilt from doubtful facts. As a matter of commonsense, it is impossible to infer guilt beyond reasonable doubt from facts which are in doubt.

There is a clear distinction between drawing an inference of guilt from a combination of several proved facts none of which by itself would support the inference, and drawing an inference of guilt from a combination of several facts whose existence is in doubt. In the first case, the combination does what each fact taken in isolation could not do. In the second case, the combination counts for nothing. I can draw inferences only from facts which are clearly proved.

When, as here, the case against the accused rests upon circumstantial evidence, before I can find the accused's guilt proved on circumstantial evidence, I must be satisfied not only that the circumstances which I find proved are consistent with guilt, but I must also be satisfied that the proved facts are such as to be inconsistent with any other reasonable conclusion.

Before I can be satisfied beyond reasonable doubt of the guilt of the accused on any charge involving circumstantial evidence, it is necessary not only that his guilt should be a reasonable inference but also that it should be the only reasonable inference that the proved circumstances enable me to draw. For an inference to be reasonable it must rest upon something more than mere conjecture. If the inference of guilt is the only inference open to me, as the trier of the facts, and upon a consideration of all the proven facts in the case, my proper verdict is guilty.

A criminal charge is, therefore, proven by circumstantial evidence if the only reasonable inference from the proved circumstances is that the accused is guilty. If there is a reasonable (or rational) explanation or story (or hypothesis, as it is sometimes called) which is consistent with innocence, that is sufficient to raise a reasonable doubt in my mind and to entitle the accused to an acquittal.

If I accept a fact, that is to say, a particular piece of circumstantial evidence, I should simply keep it in mind to be considered along with any other proven facts. If a fact, that is to say, a particular piece of circumstantial evidence is neither accepted by me nor found to be proven by me, I should reject it and put it out of my mind. But if, after considering several pieces of circumstantial evidence, I find that a series of facts has been established to my satisfaction, I then consider them in their combined effect.

It is when a number of pieces of circumstantial evidence, each separately proved, combine to prove an ultimate fact (the fact of guilt) and do so beyond reasonable doubt, that a charge based on circumstantial evidence can be said to be proved. If the combined effect of several pieces of proven circumstantial evidence does not establish guilt to such a degree, then it is my duty to acquit and find the accused not guilty.

The Prosecution has, in reality, invited me to draw a series of inferences from the evidence that was placed before me and it is from that circumstantial evidence that the Prosecution invites me to draw ultimately the inference of guilt in relation to each of the 6 counts.

I explain the process by which the circumstantial evidence here operates to prove the commission of the crime in a particular count under consideration.

I have the evidence, all of which I accept, of Mrs Fanua and the registration book and the entries in the accused's hand-writing pointing to the accused being the person who last had possession of the ''missing'' money, or, to put it another way, being the only person who had possession of the ''missing money''.

The accused therefore has the opportunity to steal the ''missing money''. I have a case of suspicion indicating (not very strongly) the possibility that the accused used that opportunity to steal the money.

Then I add to that the fact, about which I am also satisfied beyond reasonable doubt, that the accused told lies to Mrs Fanua, to Televise Samoa and to the police. Even though lies do not necessarily have the effect of discrediting a person entirely and they may be capable of explanation consistent with innocence, the lies told by this accused to Mrs Fanua (and to Televise Samoa and to the police) were told, in my judgment, because of a consciousness of guilt. I am satisfied that, conscious of his guilt, the accused was trying to avoid responsibility for what he knew he had done, that is to say to avoid responsibility for his involvement in several thefts. These lies, relating to material facts in issue, possess a tendency to indicate that his motivation was a fear of the truth. They are relevant to consideration as (and do, in my judgment, offer) positive evidence of guilt. This is one of those rare cases when it is safe to go that far. Having taken care with the evidence of lies, I conclude that this is an appropriate case for me to treat the evidence of lies as some circumstantial evidence from which the inference of guilt may (and should) be drawn.

Having concluded that the accused gave some explanations (basically one to the effect that the money had ''fallen from his pocket'' in relation to count 6 (file No.251198) and another to the effect that the money must have been taken out of the filing cabinet by somebody else in relation to counts 1 to 5) and having concluded that each of those explanations was, in the circumstances, false, that is some further potentially incriminating circumstantial evidence which may go towards proving the charge in question. It is further evidence of suspicion (or possibility) that the accused stole the money.

Then I add to that the fact, about which I am satisfied beyond reasonable doubt, that the accused failed to report the so-called ''missing money'' in counts 1 to 5 to his superior officer, Mrs Fanua, or anyone else in authority, until Mrs Fanua investigated. I construe such failure, in the circumstances, as conduct arising from a consciousness of guilt. This is further suspicion indicating (not very strongly in itself) the possibility that the accused stole the ''missing money.''

The suspicions (or possibilities) simply added together produce, at most, a strong suspicion (or strong possibility), but the coincidence between the several circumstances (which are found to be proved) independent of each other but all pointing to one and the same principal fact, namely that the accused stole the sum of money in question, increases, in my judgment, the suspicion (or possibility) to the level of proof beyond reasonable doubt.

I have reminded myself that, if I were to believe the accused's explanation in the case of 5 out of the 6 charges to the effect that the money must have been taken by someone else out of the filing cabinet and in the case of the 6^th charge to the effect that it ''fell from (his) pocket'', then that would be some direct evidence consistent with the innocence of the accused and operating to exonerate the accused, if I believed it.

It is for me, as judge of the facts, to decide whether I accept the explanation (in each case being considered) to be true or whether I consider it to be reasonably possible that the explanation in question was true. I have reminded myself of the onus of proof being on the prosecution and the standard of proof being proof beyond reasonable doubt. I have also reminded myself that, if I think that the evidence that I have heard in this trial is open to any other any reasonable conclusion than that the accused is guilty of the charge under consideration, then he is entitled to the benefit of my reasonable doubt and is to be acquitted. I would acquit him by bringing in a verdict of not guilty. But, if I conclude that these is a reasonable possibility that the accused is not guilty of the charge, then I should give the accused the benefit of doubt and acquit him. But if, after due consideration and after approaching my task in a proper manner, I am satisfied that the accused is guilty of the charge (and that is the position here in relation to each count), then I should not shrink from convicting him, that is to say bringing in a verdict of guilty.

I disbelieve each of the explanations given by the accused and I regard each as a false story. They each can, therefore, hardly be characterised as a reasonable explanation consistent with innocence.

In each instance I draw the inference of guilt, from the circumstantial evidence, which is open to me to draw, now that I have concluded that each of the explanations he gave was false (and, therefore, unreasonable).

As I have already indicated, the accused did not call any evidence. The accused did not give any evidence himself. That was, as I have already indicated, his right. It is the law today that an accused person has the right to do one of two things at their trial: First, the accused may remain completely silent, leaving it up to the Prosecution to prove the case against him, if they can. There is no obligation on an accused person to enter the witness box and give evidence, or to call witnesses. Secondly, the accused can choose to go into the witness box and give evidence on oath and be subject to cross-examination. This accused, Punaoupu Pio, chose to take the first course. By doing so, he exercised a right which the law has given him. Because I heard no evidence from the accused himself, I do not have before me and from his own lips, as a witness giving direct testimony, his account from the witness box of certain things and events which I might think he would have some knowledge of. I do have the evidence of what he is alleged to have said to certain people at various stages and what he is alleged to have done. I should not (and do not) assume, from the fact that he did not give evidence, that everything alleged against him must be true, or that the inferences as suggested by the Prosecution should be drawn. I should not (and do not) assume, from the fact that he did not give evidence, that he is guilty. I concentrate on the evidence that has been given, uncontroverted and unchallenged, as I think it is, in many respects, and decide whether or not I find it to be truthful and reliable, and decide what inferences, if any, are to be drawn from the evidence which I am satisfied about beyond reasonable doubt. I then decide whether, upon that evidence, I am satisfied beyond reasonable doubt to draw inferences therefrom and to draw the ultimate conclusion that he did what is alleged against him and that he was of the alleged state of mind. Ultimately, I have had to decide whether the accused is guilty of each offences charged (considered separately) or is not guilty.

I am satisfied beyond reasonable doubt, in relation to count 6 (file No.251/98, relating to $1,051.70) that the explanation proffered by the accused to Televise Samoa regarding the alleged loss of that money ''from (his) pocket'' was untrue.

I am further satisfied beyond reasonable doubt that the explanations given, regarding the sums of money referred to in each of the other 5 counts having been taken from the filing cabinet (he told Mrs Fanua that it must have been taken during working hours and he told the police constable that it must have been taken, in effect, after hours between the time of balancing and the next morning), were untrue.

I am further satisfied beyond reasonable doubt that the delay, on the accused's part, in reporting or explaining that ''someone had taken money'' from the filing cabinet was circumstantial evidence, as was the evidence of opportunity to commit each offence and as were the accused's lies, as 1 construed them to be, which were told, I assess, out of the consciousness of guilt. (I am talking about the story that the money, in one instance, ''fell from (his) pocket'', and, in other instances, that money was taken out of the filing cabinet by someone else).

Applying the law of circumstantial evidence to the facts here, I find that, not only are the circumstances which I find proved consistent with guilt, but also that they are inconsistent with any other reasonable conclusion.

The accused's guilt is the only reasonable inference that the proved circumstances enable me to draw.

In this case a number of pieces of circumstantial evidence to which I have referred earlier, are separately proved, in my judgment. They combine to prove the accused's guilt beyond reasonable doubt on all 6 counts, each considered separately.

I will now hear submissions as to sentence in relation to the 7 counts which are there to be dealt with.

Supreme Court of Samoa

Police v Pio [1999] WSSC 50 (12 April 1999)