Police v Ah Keni [2007] WSSC 14 (9 March 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

JAMES MAFOA AH KENI
male of Fugalei and Safaato’a Lefaga
Defendant

Counsels: Mr Koria and Mr Faasau for Prosecution
Ms Tuala for Defendant

Hearing: 8/03/2007
Decision: 9/03/2007

DECISION BY VAAI J

The accused is charged that on diverse dates between the 7th day of December 2005 and the 5th day of March 2006 he, being a servant of Thor and Lynn Netzler Co. Ltd did steal $2575.00 in cash, the property of his employer. He was employed as the petrol station attendant working at different shifts at the end of which he was required to take the readings of the litres and cash meters and record them in the sales book. The cash count should not only tally with the recorded readings of the cash meter but it must also be equivalent to the costs of litres of fuel sold. The entries in the sales book and the cash collected are then checked by a senior employee of the company.

On Sunday morning the 5th March 2006 Sefo Avito was instructed to work the morning shift from 6am to 1pm but when he took the readings of the petrol pump he was alarmed by the unusual appearance of the figures in the cash meter, which prompted him to report it to Ms Vitale, the company accountant and supervisor. Ms Vitale checked the readings against the entries recorded in the sales book by the accused who worked the previous shift the day before and found the entries matched the numbers shown on the meter. But when she checked the quantities of petrol sold against the cash collected there was cash shortage of $1336. The litre figures did not balance with the cash figures. She also checked the entries for the 3rd March and calculated the cash takings from the shift worked by the accused to be short by $1239.00. The shortages were noted down in a piece of paper. She also noted down the shortages from the 5th March 2006 to the 18th January 2006 before she sent for the accused who lives close nearby. The accused denied the discrepancies in the book entries and the cash collected; Ms Vitale showed him her calculations using the calculator and told the accused he will have to explain to the police. The accused then started to cry and told her he will repay the money. If her evidence is correct then the accused should have been charged with twenty six incidents of theft for sums totalling $19,250.48 instead of the two incidents of theft alleged to have been committed on the 3rd and 4th March 2006 and the one count of theft committed on the 5th March 2006 to which he had already entered a guilty plea. In his police statement dated 7th March 2006 the accused admitted the theft on the 5th March but denied the allegations of theft on the 3rd and 4th March; in fact he referred the police to the book entries on the 4th March which showed an excess of cash of $66.77 and on the 3rd March there was a shortage of cash of $57.38 which was deducted from his salary by Oscar Netzler who balanced the book.

The sales book was kept by the police after the interview and could not be found. Oscar Netzler was not called to confirm or deny what the accused told the police. Ms Vitale told the court that Oscar Netzler did not check the book properly since he only checked the book entry against the cash and litre meters. It is not for Ms Vitale to tell the court what Oscar Netzler may not have done correctly; she did not have the sales book with her when she testified; more importantly the accused told the police that there was excess of cash on the 4th March and a short of only $57.38 on the 3rd March and Oscar Netzler was the only person who could verify or refute it.

It is contended by the prosecution that in view of his admissions to Ms Vitale on the 5th March there is sufficient evidence before the court to prove that the accused indeed took the monies from his employer on the 4th and 3rd March. I have my doubts on the reliability of the evidence of Ms Vitale. When she initially questioned the accused he denied taking the monies on the 3rd and 4th March or any other date before; the denial by the accused was repeated by the accused to the Police when he was interviewed. He did however admitted to both Ms Vitale and the police he took $815.80 on the 5th March. I am not convinced by the evidence of Ms Vitale that the accused admitted taking the monies on the 4th and 5th March. Accordingly I am not satisfied beyond reasonable doubt that the accused took the amounts of monies alleged to have been taken on the 4th and 3rd March and the charge is dismissed. On his guilty plea the accused is remanded on same bail conditions to the 12 March 2007 for Probation Report and for sentence.

JUSTICE VAAI