IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

PALE TIUPITA LEIATAUA,
male of Manono-tai
Defendant

Counsel: Ms P Chang for the prosecution
Defendant in person

Hearing Dates: 21 and 22 April 2005
Sentencing Date: 13 May 2005

REASONS FOR DECISION OF VAAI J.

The accused was formerly employed by Chan Mow Co. Ltd as a marketing personnel which required the accused to visit grocery stores on the island of Upolu to promote his employer’s products. He was authorized to grant credit to the customers and he would later collect the payments and issue receipts from the company receipt book he carried with him. He was required to hand in the monies collected at the end of the day or at the start of business the following working day for the accounts section of the company to enter the transactions into the computer accounting system.

On Friday the 21st May 2004 the accused issued five receipts to the company’s customers for the payments made by the customers to the accused upon his visit to their shops. As it was impracticable for the accused to take the money to the company office that day he told the court he proceeded on home as it was after closing hours. The money and the receipt book were in his brief case. Later that evening when he got home he realised the money was missing; the total amount of $2,205 he collected that day was all gone, but the receipt book and the brief case were not missing. He suspected that the money went missing when he left the brief case in the car while attending to one of the company customers on his way home.

The following morning the accused went to work but did not report the missing money. He said he was required that morning by the company to rush to the airport to arrest an absconding debtor. He was not armed with any writ and after being told by the police at the airport he could not arrest anyone without the necessary papers he returned to town. He issued a receipt to Vaea’s take-away for the cash payment of $351.90 he collected that day. He went home with the receipt book and the $351.90 and without telling or explaining to the company the money he collected on the 21st.

On the following Monday the 24th May the accused did not report to work. He went to the National Hospital at Motootua as he was sick; he suffers from gout. Upon leaving the hospital he travelled to Vaivase to collect some monies from one of the customers named Sandra and he went to the company wholesale and sent in his son to receipt the money after which he continued on home.

The accused is charged with theft of the monies he receipted and collected on the 21st, 22nd and 24th May. He does not deny receiving the monies. Neither does he deny that the monies received by him on the 21st and 22nd were not given by him to the company. As for the monies received by the accused on the 24th Lenora Adams of the Company’s Account Section told the court under cross examination that the accused did pay to the company monies on the 24th but the monies were for the customer Taito and not from the customer Sandra which the accused said he collected the money from. But another company employee Pa’i Su’a; a teller testified no monies were received for either Sandra or Taito on the 24th. If the evidence of Lenora Adams is accepted it would tend to support the evidence of the accused that he did pay to the company monies on the 24th. In any event the conflicting evidence of the two employees of the company in my view raises a reasonable doubt which must be taken in favour of the accused and as a consequence the two informations 933/04 and 938/04 alleging theft of $200 and $50 on the 24th May 2004 are dismissed.

In respect of the monies collected on the 21st and 22nd May 2004 the court must consider the explanation given by the accused that the money collected on the 21st was lost between Apia and his home at Manono; as well as the evidence given by the prosecution witnesses. He has offered no explanation about the $351.90 received by him on the 22nd and I therefore draw the conclusion that the accused appropriated the money for his own use. On the 4th June 2004 the accused wrote to the company enclosing a medical certificate dated 31st May 2004; he apologised for not promptly advising the company for his long absence; he made no reference whatsoever to the missing monies. The company then sent another employer to retrieve the receipt book from the accused but he was told by the accused that the receipt book was at Toomatagi. Towards the third week of June the company lodged a complaint with the Police as a result of which the accused went to the police post at Faleolo with the receipt book and told Inspector Tago that he had lost the money and requested time to pay it back. He requested time to pay the money and Inspector Tago granted him time but two days later the accused went back and told Inspector Tago he cannot repay the lost money. Charges were then laid against the accused.

I have very serious doubt about the truth of the evidence given by the accused. In the first place I do not accept that he had no opportunity to tell the company on the 22nd May about the money he collected the day before which he said was stolen from him within his brief case inside his car. His claim that he had to rush to the airport to arrest an absconding debtor lacks sense, logic and credibility. I do not accept that the company would allow the accused to embark on such a course without the necessary proper documentation which the company is accustomed to from previous occasions. In any event I do not accept the accused had no opportunity to tell the company on the 22nd. He did not want to tell because he did not loose the money; he had a dishonest motive which he also applied to the $351.90 he collected later that same day from Vaea’s take away. His testimony about the stolen money is a fabricated saga; he had every opportunity to pay it back if he did intend and had the capability to pay it back.

I find the remaining informations 933/04, 934/04, 935/04, 936/04, 937/04 and 940/04 relating to monies taken on the 21st and 22nd proved beyond reasonable doubt. The accused is remanded to the 13th May for probation report and sentencing.

JUSTICE VAAI