Police v Saolele [2006] WSSC 57 (1 September 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

FITI SAOLELE
a female of Faleula uta
Defendant

Counsels: Mr K Koria for the prosecution
Mr Ainuu for the defendant

Hearing: 8, 9, 11, 18, 23, 24, 30 May, 13, 18, 21 July.
Submissions: 16 August 2006
Verdict: 01 September 2006

JUDGMENT OF VAAI J

The accused Fiti Saolele aged 29 years was employed by the Ministry of Health in 1997 until late 2003 when she and others were dismissed following investigations into the financial affairs of the Ministry. She has been charged with 10 counts of theft as a servant and 10 corresponding counts of falsifying accounts with intent to defraud. She pleaded not guilty. At the time the alleged offences were committed she was employed in the accounts section of the Corporate Service division in the Ministry, and part of her duty was to process TY1 forms which essentially were written requests to the Ministry of Finance to effect payment to suppliers for goods and services they provided to the Ministry of Health. On the 1st September 2006 I found her guilty of all the 20 informations. These are my reasons for the guilty verdicts.

Background

Cleansol Chemical Ltd a local company was during the years 2001 to 2003 the supplier of cleaning chemicals and detergents to the Ministry of Health. A system was in place for the procurement of the commodities and for the processing of payments for those goods.

1. When supplies were required a requisition form setting out the nature and quantity of the commodity requested was completed and approved by the Output Manager of the division making the request.
   

The requisition taken to the Stores Division of the Ministry and a TY11 form was prepared by the Local Supplies section of the Stores Divisions. The TY11 specified the quantity and the price of the goods requested. After written approval by the Assistant C.E.O and the Requisition officer of the requesting division the TY11 was delivered to the Corporate Section of the Ministry for registration which involved giving the TY11 an MD number and entering of the MD number in the TY11 Register together with all the details in the TY11 including the date and name of the supplier. The registration number followed in sequence from the last number in the register.

2. The TY11 was then returned to the Stores Division for registration in its own register before it was delivered to Ministry of Finance, where after checking and entry of the details into its system a Purchase Order was then issued. The original and two copies of the Purchase Order together with a copy of the TY11 were then returned to the Ministry of Health, while the Ministry of Finance retained the original of the TY11 and a copy of the Purchase Order.
   
3. The original of the Purchase Order was then delivered to the supplier who supplied and delivered the goods and also issued an invoice. Upon receipt of the goods by the Stores division a TY22 was issued.
   
4. To effect payment of the goods received the Accounts section prepared a TY1 voucher based on informations in the copies of the TY11, Purchase Order and the Invoice. After approval of the TY1 by the appropriate designated officer, the TY1 was forwarded to the Corporate Services division of the Ministry for registration in the TY1 register. Like the TY11 register, the TY1 was registered in sequence; the sequential registration number was noted on the TY1 and the register recorded the details of the TY1.
   
5. Following registration the TY1 was then delivered to the Ministry of Finance together with a copy of the Purchase Order and the original invoice from the supplier.
   
6. A cheque for payment to the supplier noted on the TY1 was then issued following approval by the Ministry of Finance for payment after the TY1 and supporting documents have been scrutinised and approved by its Accounts and Audit divisions.
   

Allegations against the Accused

It is alleged that the accused (usually in association with others) falsified the accounts by making and instigating unlawful alterations to the TY1 vouchers after they have been approved and certified for payment to the local service providers for the goods supplied to the Ministry of Health. In most instances the TY1 vouchers were altered to change the name of the claimant to Cleansol Chemicals when Cleansol Chemicals was not entitled to any payment and was therefore not registered on the TY1 register as the claimant.

In some instances false TY1 vouchers were prepared for payments to Cleansol Chemicals sums of monies for goods which were never supplied, and registration numbers which have already been allocated and registered under other suppliers were written on the false TY1 vouchers. In other instances TY1 vouchers approved and certified for payments to Cleansol were altered to increase the amounts payable so that the amounts shown on the register were much smaller than the actual amount paid. The prosecution alleged that the accused who had a close personal relationship with the General Manager of Cleansol Chemicals either instigated the false alterations or in some instances personally made the alterations.

Informations 102/04 and 122/04

Information 102 alleged that on the 16th May 2003 the accused stole $8,050.03 the property of her employer the Ministry of Health. Information 122 alleged that on the same date, she, with intent to defraud the Ministry of Health, altered the TY1 in order to effect a payment of $8,050.03 to Cleansol Chemicals.

The prosecution alleged that on the 16th May 2003 a TY1 was prepared and approved for the payment of $1,144.36 to BOC Gases and was registered in the TY1 register as HE 3458. A copy of this TY1 HE 3458 was produced as exhibit "P2". Subsequent to its approval and registration the prosecution contended that P2 was altered to change the name of the claimant from BOC Gases to Cleansol; the amount payable was also changed from $1,144.36 to $8,050.36. A copy of this altered TY1 was produced as "P1". When presented to the Ministry of Finance for payment the false entries were not detected and payment of $8,050.36 was made to Cleansol Chemicals.

Junior Falevaai told the court he prepared the TY1 ("P2") for payment of $1,144.36 to BOC Gases and forwarded it on for approval and registration. When it was given to him a day later by the accused the TY1 ("P2") was approved and had registration number HE 3458 but the claimant’s name, invoice numbers, P.O numbers, TY11 registration numbers and amounts payable were erased with a twink pen. Mr Falevaai wrote down Cleansol Chemicals to replace the twinked out BOC Gases as the claimant on instructions from the accused and the rest were filled in by the accused, so that, instead of $1,144.36 payable to BOC Gases the altered TY1 HE 3458 "P1" was to effect payment of $8,050.36 to Cleansol Chemicals. As a result of the alterations the name of the claimant and all the details in the TY1 register bore no resemblance to the details on the altered TY1 HE 3458 ("P1"). Mr Falevaai went on to say that he and the accused uplifted the cheque from the Ministry of Finance and delivered it to the office of Mr To’o Te’o the Managing director of Cleansol Chemicals. The accused went inside to deliver the cheque and returned with Mr Teo’s personal cheque of $1,000 which they cashed at the bank and the accused gave Mr Falevaai $100 for his efforts. Falevaai also told the court that the accused confided to him that she was having an affair with Mr Te’o. On one occasion at a nightclub in town Mr Falevaai in the presence of the accused and other employees of the Ministry of Health met Mr Te’o who generously provided for their alcoholic drinks for the good part of the evening.

The accused in her testimony gave a blanket denial; she denied personal knowledge of the Managing director of Cleansol; denied involvement in the alteration of TY1; denied going to the office of Cleansol; denied the $1,000 cheque; in fact she denied everything Falevaai said concerning the alteration of the TY1 for BOC Gases.

Information 107/04 and 138/04

Information 107/04 and 138/04 allege that on the 2nd September 2003 the defendant stole $3719.25 the property of her employer and she did so by intentionally falsifying TY1 HE 726 to effect payment of $3719.25 to Cleansol.

Falevaai again told the court that he prepared a TY1 for the payment to Elaine MAR Enterprises of $3245.30 which was approved by the Principal Accountant. The next time he saw this same TY1 was when it was brought by the accused with the name of the claimant Elaine MAR Enterprises, HE Number, Purchase Order Number, Invoice and MD numbers all twinked off. This TY1 was produced as exhibit "P8" and the twinked off names and numbers can be seen by reading the document from behind. Cleansol was then written over the twink by Falevaai as the claimant and new HE, MD, Invoice and Purchase Order numbers were also added on instructions from the accused. The amount payable was also changed from $3245.30 to $3719.25. Despite the glaring alterations the Ministry of Finance approved payment and issued a cheque to Cleansol for $3719.25 on the 6th September.

Mateo Ah Chong, the Principal Account told the court he certified the TY1 payment to Elaine MAR Enterprises of $3245.30 and any subsequent alterations to the TY1 should have been referred back to him for his approval and certifications and since his initials were not there the TY1 was obviously altered without his knowledge. In any event there was no necessity to change the claimant’s name to Cleansol or to effect any change whatsoever simply because there should be a separate TY1 for each claimant; that is, a separate TY1 should have been taken out for Cleansol if it had a genuine claim, and it was not a genuine claim because the TY1 register showed that HE 726 was registered under Ioane Satuala for the sum of $958.38

The accused denied knowledge of the alterations and she denied telling Falevaai to make the alterations.

Informations 133/04 and 144/04

These informations allege that on the 17th July 2003 the accused stole $2480.50 and she did so by falsifying TY1 HE45 with intent to defraud.

In support of these allegations the prosecution produced as exhibit "P11" a TY1 prepared and approved for payment to Island Printing the sum of $3,600. The TY1 ("P11") was duly registered as HE 45.

But there was also another TY1 with HE 45 written on it as its registration number; it has Cleansol as the claimant for the amount of $2480.50. Falevaai told the court he prepared this TY1 (produced as exhibit "P12") from an invoice and purchase order given by the accused and after approval by the principal accountant the accused inserted HE 45 as the registration number and the TY1 was given to the Ministry of Finance for payment which was done. This TY1 ("P12") was again clearly a fraud.

Again the accused disputed the evidence of Falevaai and denied knowledge of the TY1 to Cleansol.

Informations 134/04 and 144/04

The prosecution alleged that the accused stole from the Ministry on the 21st February 2003 the sum of $9731.25 and she did so by falsifying with intent to defraud a TY1 to facilitate payment of the said sum to Cleansol.

To support these charges the prosecution produced as exhibit "P13" a TY1 dated 21st February 2003 for the payment of $2,200 to the Minister of Health to donate as a gift from government, at the official opening of the Foailalo Health sub-centre. The TY1 was prepared by the accused, certified by the Assistant Chief Executive officer and registered in the TY1 register under HE 2465 (Exhibit P33).

But the prosecution also produced another TY1 with the same registration number (HE 2465) and dated the same day (21/2/03) and made out to Cleansol for the payment of $9731.25. It was approved by the principal accountant. This TY1, produced as exhibit P14 is clearly a fraud. Falevaai told the court he prepared this TY1 (P14) from the invoice and purchase order given to him by the accused and HE 2465 was inserted by the accused. The cheque for payment to Cleansol of $9731.25 was uplifted from the Ministry of Finance by Falevaai and the accused who delivered it to the office of Cleansol after making contact with the General Manager of Cleansol Chemicals over the mobile phones.

The accused denied telling Falevaai to prepare the TY1 (P14); she denied knowledge of the TY1; she denied making contact with Cleansol on the phone, and she denied delivery of the cheque to Cleansol Chemicals.

Informations 135/04 and 143/04

These alleged that on the 26th August 2003 the accused stole $6734.25 from the Ministry by falsifying a TY1 with intent to defraud in order for the amount of $6734.25 to be paid to Cleansol.

The prosecution contended that a TY1 was originally prepared for the payment of $1,786 to Cleansol Chemicals. It was approved and registered under HE 567. But after registration the TY1 was altered at the instigation of the accused by increasing the amount of the claim to $6734.25 so that the amount recorded in the TY1 register under HE 567 was substantially smaller than the claim given to the Ministry of Finance for payment. If that was to be accepted as correct which I do accept then the amount alleged to be stolen was not $6734.25 as alleged but the difference between what was recorded in the TY1 register under HE 567 which is $2009.25 ($1786 plus $223.25 VAGST) and $6734.25 which is $4725. There was no evidence to suggest that the original TY1 for payment of $1,786 was fraudulent.

Falevaai said he prepared the TY1 for the payment of $1786. He used 1 invoice and 1 purchase order as supporting documents and the TY1 was approved and registered under HE 567. This registered TY1 was brought back to him by the accused together with another invoice and purchase order and Falevaai was told include the additional invoice and purchase order and alter the TY1 which Falevaai did. As a result the fraudulent alterations were not recorded in the TY1 register.

Again the accused denied telling Falevaai to make alterations to the TY1.

Informations 136/04 and 146/04

They allege that on the 25th July 2003 the accused stole $3127.50 from the Ministry by falsifying a TY1 with intent to defraud the Ministry to facilitate the payment of $3127.50 to Cleansol.

A TY1 (Exhibit P18) was prepared for the payment of $3296.25 to Sio Silva & Sons Upholstery. It was approved and duly registered under HE 197.

But there was also another TY1 with the same HE number 197 made out to Cleansol for the payment of $3127.50 (Exhibit P19). This TY1 was not registered; it cannot be registered under HE 197 as that number was already allocated to the claim by Sio Silver & Sons Upholstery. It was clearly a fraud despite its approval by the principal accountant. Falevaai again told the court that both TY1 were prepared by another clerk Leata and the HE 197 was written on the TY1 (Exhibit P19) by the accused herself.

In her evidence the accused denied knowledge of the altered TY1 because she said it was another clerk Priscilla who prepared, it checked by Leata, and the HE Number was inserted by Falevaai.

Information 139/04 and 142/04

These informations allege that on the 23rd May 2003 the accused stole $5979.38 from the Ministry by falsifying a TY1 with intent to defraud the Ministry in order for the amount of $5979.38 to be paid to Cleansol Chemicals.

Again it was Falevaai who prepared the TY1 exhibit P20 for the payment of $1119.38 to Cleansol. He had an invoice and a purchase order as supporting documents. It was approved and certified by the principal accountant and registered under HE 3552. And again the registered TY1 was brought back by the accused who told Falevaai to add another invoice and purchase order which Falevaai as usual willingly did, so that the total amount now payable under TY1 was $5979.38 and not $1119.38 as appeared in the TY1 register. Again the amendments and alterations to TY1 were done without the knowledge of the principal accountant who approved and certified the original TY1. The alteration TY1 was a fraud. The principal accountant told the court he was not aware of any alterations and he never authorised any.

There was no suggestion by the prosecution that the original TY1 for the payment of $1119.38 to Cleansol was fraudulent so that the correct amount of monies stolen should be $4680 being the difference between the original amount of $1119.38 and the unauthorised altered amount of $5979.38.

The accused denied any involvement in the alteration of the TY1.

Informations 616/04 and 617/04

It is alleged that the accused on the 2nd May 2002 stole $4488 from the Ministry by falsifying a TY1 voucher with intent to defraud in order for the amount of $4488 to be paid to Cleansol Chemicals.

Falevaai again prepared a TY1 voucher with the supporting invoice and purchase order given to him by the accused for the payment of $4488 to Cleansol (Exhibit P26). It was approved. Written on the TY1 as its registration number was HE 3368.

But in the TY1 register HE 3368 is the registration number for a TY1 made out to AR Nauer for the sum of $5675. The TY1 to request payment to AR Nauer of $5675 was prepared by the accused on the 2nd May 2002 (Exhibit P27).

The TY1 made out to Cleansol was a deliberate manoeuvre to effect payments for services which were never rendered. HE 3368 was already allocated to the AR Nauer claim.

The accused denied knowledge of this TY1 to Cleansol; she denied telling Falevaai to prepare the TY1 and denied giving Falevaai the supporting invoice and purchase order. She also denied entering HE 3368 on the TY1.

Informations 651/04 and 618/04

It is alleged that between the 31st March 2002 and the 1st May 2002 the accused stole $4140 from the Ministry by wilfully falsifying the Ministry’s Account by using a false TY1 to pay $4140 to Cleansol.

The prosecution produced two TY1 with the same registration number HE 3170. One was for payment to Samoa Observer of $1804.50 (Exhibit P28); it was approved for payment on the 8th April 2002 and duly registered under HE 3170.

The second TY1 (Exhibit P29) for the payment to Cleansol of $4140 was prepared by Falevaai on the 9th April 2002 on instructions from the accused who also provided the necessary invoice and purchase order. It was approved and certified on the 10th April and a cheque issued to Cleansol on the 11th April. It was not registered; but written on the TY1 was HE 3170 purporting to be its registration number. It was a fraud.

Again the accused gave a blanket denial of any knowledge or involvement.

The alterations of all the TY1 vouchers as alleged in the informations were all fraudulent as I have already concluded and were all for the benefit of Cleansol Chemicals. Mr Falevaai pursuant to his own testimonial also benefited from the monies he received through the accused as well as having his return air fare to Auckland paid by the General Manager of Cleansol Chemicals. As an accomplice Mr Falevaai’s evidence must be treated with considerable caution; he has been given indemnity from prosecution by the police in return for his co-operation; by his own admissions he was undisputedly the culprit who did the false alterations to most of the TY1 vouchers. He did not need any persuasion, he was a willing participant in the scheme which in my view involved not only other persons within the Ministry of Health but also someone or some persons within the Ministry of Finance as purchase orders could only have come from that Ministry; and quite a number of mysterious purchase orders (which could not have been properly issued) were used by Mr Falevaai as supporting documents to alter the TY1 vouchers. Purchase orders according to the system in place at the time could only be issued upon production to the Ministry of Finance by the Ministry of Health of approved TY11 vouchers.

Mr Falevaai was originally employed in the stores division but was told by the Assistant CEO and head of Corporate Service to assist with the preparation of TY1 vouchers during the time these offences allegedly took place. His evidence at times if not most of the time could be considered suspect; his demeanour at times irritating and annoying, but at the conclusion of the hearing of the testimonies most of his testimony when considered together with other testimonies made good sense.

Niusila Minute was in 2001 a reconciliation clerk in the Corporate Service division of the Ministry of Health; he advanced to senior reconciliation clerk in 2003; a job which required him to prepare monthly reports to reconcile the Ministry’s accounts with the report from the Ministry of Finance and any discrepancies between the two accounts to be reported to Management of the Ministry. Niusila Minute did find discrepancies but did not report them to his superiors because he told the court he was given monies by the accused to entice him not to report the discrepancies. He was given sums of monies ranging from $100 to $350. I accept his evidence despite denials by the accused. I also bear in mind that he was an accomplice and it is permitted but dangerous to convict on the uncorroborated evidence of an accomplice.

The accused as I have noted gave blanket denials of any involvement or knowledge in the alterations of the TY1 vouchers. She also told the court she only met the Managing Director of Cleansol Chemicals once at night at the RSA; she also denied giving monies to Niusila Minute; she also denied that the Managing Director of Cleansol paid for her return airfare to Australia. She did travel to Australia twice in 2003; once on annual leave in June and the second time in September when investigations into the Ministry commenced. Both airfares, she said were paid by his parents; her mother was employed in the Ministry of Health and her father was a Police Inspector. I am not totally convinced that the parents on their salary standings could afford two return tickets within a space of 4 months for the accused to travel for two holidays in Australia. I accept Mr Falevaai’s evidence that the Managing Director of Cleansol Chemicals paid one of the accused’s return travel to Australia.

The accused’s evidence lacked credibility and sincerity. I find the allegations levelled at her proved beyond reasonable doubt.

Informations 613/04 and 619/04

They alleged that the accused stole $11,506 from the Ministry between the 30th November 2001 and the 1st January 2002 by falsifying a TY1 with intent to defraud the Ministry to facilitate payment of $11,506 to Cleansol Chemicals.

It is accepted that on the 18th December 2001 the accused prepared a TY1 (exhibit P25) for payment of cleaning chemicals supplied by Cleansol and it was approved and certified by the principal accountant. Written on this TY1 (Exhibit P25) is HE 2238; it was also written by the accused and according to the system it should be the registration number for this particular TY1. But the TY1 register (exhibit P37) showed that HE 2238 was the registration number for a TY1 voucher made out to Samoa Observer for payment of $409.50; and it also appeared that the registration of HE 2238 under Samoa Observer was entered by the accused on the 17th December, the day before she prepared the TY1 exhibit P25 for Cleansol.

The TY1 for Cleansol was originally for an invoice of $2,970, plus VAGST of $297 making total of $3,267. But the figure of $2,970 was crossed off and $10,460 was substituted and initialled by the accused. VAGST of $1,046 and the grand total of $11,506.00 were also added and also initialled by the accused. When the TY1 was certified and approved by the principal accountant the alterations were not there. The principal accountant did not initial the alterations because he told the court there were no alterations and despite this blatant defect in the TY1 the Ministry of Finance approved it and paid $11,506 to Cleansol Chemicals. The TY1 was not recorded in the system; it was obviously designed to beat and avoid being detected.

In her testimony the accused told the court that the alterations were made by her and initialled by her before the principal accountant approved and certified the TY1. Under cross examination in which she displayed evasiveness she told the court that she made alterations when the principal accountant gave her additional invoices for inclusion in the same TY1. This very serious allegation was never to the principal accountant under cross-examination and I accept defence counsel’s explanation for not raising the issue with the principal accountant. The allegation against the accused was a very serious one involving a large sum of money allegedly taken by altering a TY1 prepared by herself which was not registered in the established system and it was beyond comprehension to understand why the accused did not advise counsel, that she did the alterations on orders from the principal accountant. Her response was a fabrication which must be rejected and is rejected. She made the alterations and entered a false registration number after the principal accountant approved and certified the TY1. This allegation is also proved beyond reasonable doubt.

VAAI J