Police v Silipa [2008] WSSC 81 (5 September 2008)

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Counsels: Mr K. Koria and Ms L.M. Su’a for the prosecution
Ms Leilani Tuala-Warren for the defendant

Hearing: 28, 29 & 30 May 2008
Submissions: 1 August 2008
Decision: 5 September 2008

The defendant is the ex-manager of Samoa Napa Company Limited a supplier of automobile and machine parts having its head office in Pago Pago American Samoa. The defendant is charged with ten counts of theft while managing the Apia branch of the company and ten counts that with intent to defraud he did incite Tepora Aofia the company cashier to make false entries in the sales sheets of the company. The theft as a servant charges are brought pursuant to sections 85, 86(1)(g) and 88 of the Crimes Ordinance 1961 and the false entry charges pursuant to sections 23(1)(d) and 99(b) of the same Ordinance. Each theft as a servant charge has a corresponding false entry partner charge.

1.	That at Saleufi between 5 & 31.01.06, being a servant of the Samoa Napa Company Limited stole $3191.40tala property of his employer the said Samoa Napa Co. Ltd.
	That at Saleufi between 5 & 31.01.06, with intent to defraud his employer incite Tepora V. Aofia to make a false entry in the Sales Sheets of Samoa Napa Limited.

2.	hat at Saleufi between 2 & 28.02.06, being a servant of Samoa Napa Company Limited stole $4067.20tala property of his employer the said Samoa Napa Co. Ltd.
	hat at Saleufi between 2 & 28.02.06 i, with intent to defraud his employer, incite Tepora V. Aofia to make a false entry in the Sales Sheets of Samoa Napa Limited.

3.	hat at Saleufi between 1 & 31/03/06, being a servant of Samoa Napa Company Limited stole $4626.50tala the property of his employer the said Samoa Napa Co. Ltd.
	That at Saleufi between 1 & 31.03.06, with intent to defraud his employer, incite Tepora V. Aofia to make a false entry in the Sales Sheets of Samoa Napa Limited.

4.	That at Saleufi between 1 & 30.04.06, being a servant of Samoa Napa Company Limited stole $2802.10 tala property of his employer the said Samoa Napa Co. Ltd
	That at Saleufi between 1 & 30.04.06, with intent to defraud his employer, incite Tepora V. Aofia to make a false entry in the Sales Sheets of Samoa Napa Limited.

5.	That at Saleufi between 1 & 31.05.06, being a servant of Samoa Napa Company Limited, stole $4828.50tala property of his employer the said Samoa Napa Co. Ltd.
	That at Saleufi between 1 & 31.05.06, with intent to defraud his employer incite Tepora V. Aofia to make a false entry in the Sales Sheets of Samoa Napa Limited.

6.	That at Saleufi between 2 & 30.06.06, being a servant of Samoa Napa Company Limited stole $6601.85tala property of his employer the said Samoa Napa Co. Ltd.
	That at Saleufi between 2 & 30.06.06, with intent to defraud incite Tepora V. Aofia to make a false entry in the Sales Sheets of Samoa Napa Limited.

7.	That at Saleufi between 30.06. & 1.08.06, being a servant of Samoa Napa Company Limited stole $6767.90tala property of his employer the said Samoa Napa Co. Ltd.
	That at Saleufi between 30.06 & 1.08.06, with intent to defraud his employer, incite Tepora V. Aofia to make a false entry in the Sales Sheets of Samoa Napa Limited.

8.	That at Saleufi between 31.07 & 1.09.06, being a servant of Samoa Napa Limited stole $7296.37tala property of his employer the said Samoa Napa Co. Ltd.
	That at Saleufi between 31.07 & 1.09.06, with intent to defraud his employer, incite Tepora V. Aofia to make a false entry in the Sales Sheets of Samoa Napa Company Limited.

9.	That at Saleufi between 31.08 & 10.09.06, being a servant of Samoa Napa Company Limited stole $1276.75tala property of his employer the said Samoa Napa Co. Ltd.
	That at Saleufi between 31.08 & 10.09.06, with intent to defraud his employer, incite Tepora V. Aofia to make a false entry in the Sales Sheets of Samoa Napa Limited.

10.	That at Saleufi on the 4.09.06, being a servant of Samoa Napa Company Limited stole $251.00tala property of his employer the said Samoa Napa Co. Ltd.
	That at Saleufi on the 4.09.06, with intent to defraud his employer, incite Tepora V. Aofia to make a false entry in the Sales Sheets of Samoa Napa Limited.

The prosecution called four witnesses, Ms Tepora Aofia the cashier for the Apia branch at the material time, Mr Edward Nielsen and Siaosi Pepe two of its sales people, and Mr Isakara Siemu who replaced the retiring defendant and who discovered the misappropriations in this matter.

The offending is alleged to have occurred over the period 5 January 2006 to 10 September 2006 and the staff at the time comprised the defendant as manager, Tepora as cashier, the two salesmen Neilsen and Pepe and a night watchman/driver.

The sales system in use was that once a customer decided on his purchase a salesman would take the merchandise to the cashier who calculated the price plus VAGST, received payment from the customer, issued a receipt and then recorded the particulars of the sale (i.e. the receipt number, a description of the item sold, the part number, the cost per unit, the quantity sold, the tax payable and the total amount paid) onto a daily sales activity ("DSA") sheet. At days end the cashier totals up the sheet and this should match her cash on hand. The sheet and the receipt book as well as the cash are then taken to the manager to verify. The manager is supposed to fill out his own form known as a daily cash flow form based on the entries from the receipt book. This form records the receipts issued and for what amounts and also records the cash on hand and the denominations thereof. The total of this form should always match the DSA total and tally with the cash on hand. The final step in the operation is to fax at the end of each day to the Pago head office the DSA sheet for that day.

The following day the cash on hand is banked to the companies ANZ Bank Apia cheque account. The lodgment slips were filled in by the cashier but signed by the defendant as manager. After the banking the lodgment receipt was also faxed to the Pago main office.

The evidence of Tepora Aofia is she commenced working for the companys Apia branch in April 2003. Her duties included receiving payments from customers, issuing receipts out of the receipt book, compiling the DSA sheets, keeping the daily takings and attending to bankings. Counting the daily takings and preparing the daily cash flow statement she said was normally done by the defendant. There were occassions however when she assisted with that task.

Over the course of 2006 it was discovered by the manager who replaced the defendant that the DSA sheets were being added up incorrectly, thus for example the sheet for 6 January 2006 showed a total of $1914.70 but when added up actually totaled $2054.70, a difference of $140.00. Several sheets for the month of January were like this resulting in a shortage of $3,011.40 for the month. The incorrect total however always matched the total in the daily cash flow statement and because no one until the replacement manager came on to the scene checked the accuracy of the DSA sheet totals, the shortages went undetected.

Teporas evidence was that these shortages were the result of staff borrowings from the cash which were sometimes not repaid the same day or at all as well as theft from the till by persons unknown as well the defendant giving unauthorized discounts to customers. But mainly they were from the defendant taking cash out after the DSA sheets had been filled in by her and then instructing her to make sure the cash and the sheets balanced up. She said she began this practice in late 2004 and continued up to the day they left the employ of the company. The amounts taken varied from day to day and ranged from $20 to $500. She did not deny putting down the incorrect totals but said she did so to cover what the defendant was doing. The next day she would bank the amount of the incorrect total so on the face of it the banking total matched the DSA total and the daily cash flow total. This practice continued into 2006 until the date of her dismissal on or about 11 September.

Tepora’s further evidence was that initially her relationship with the defendant was that of a manager and employee but in early 2005 it became more personal. They became lovers and spent a lot of time together after hours. She also admitted receiving some of the stolen monies from the defendant and that two or three times a week with the defendants knowledge she would take money from the cash register. She was also aware that the Pago head office were not checking the DSA totals.

Teporas evidence is in some respects confirmed by the evidence of the two salesmen Edward and Siaosi who were both working for the company at the relevant time. They confirmed the personal relationship between Tepora and the defendant and also the existence of a staff loan scheme funded from the till. They however said all such loans were fully repaid out of their salaries and as such would not be the cause of any shortages. Edward also testified about monies taken from the till and being used for staff lunches on the instructions of the defendant and/or Tepora.

The only other witness called by the prosecution was the incoming manager Mr Siemu. He was hired in August 2006 to replace the defendant and began working under the defendant as a trainee manager. After a short time he became suspicious arising out of a shortage which the defendant told him to ignore as they got no overtime for tracing shortages and he decided on his own initiative to check the accuracy of the DSA sheets by taking them home. When he did so he found the totals inserted by Tepora were in fact incorrect. He confronted Tepora as the defendant was not at work that day and noticed she was "very nervous" and she questioned him as to why he took the sheets and the office calculator home. She offered no satisfactory explanation to his enquiries so he reported the matter to head office in Pago and asked them to check the DSAs for the previous months. Their advice was that many of the totals for the year were also incorrect al beit they matched the totals banked to the companys account. As a result of Mr Siemu’s investigations, he resolved to terminate the services of both the defendant and Tepora and referred the matter to the police.

The defence evidence consisted of the defendant only. He said he began with Napa in April 2003 as manager for their Apia store. There was no list of duties but he worked with a person from Pago head office for a time learning the job. He supervised Tepora, Edward, Siaosi and the driver and stated that Tepora worked independently of him except for when she was on leave or late to work at which time he would undertake her duties such as preparing the DSA sheets and receiving and receipting sales monies.

He said the daily cash flow statement was a document provided by Pago head office at his request so he could check the banking the next day. He also wanted to use it to check Teporas actions because he was suspicious as she was always buying things for her four children, giving her siblings visiting her at work money and shouting lunches for the staff. He was also aware she employed a baby sitter all this on a salary of $140 per week. He said he was told by head office in Pago not to bother filling in the receipt details as these were already on the DSA sheets. However he alerted the head office general manager as to his suspicions.

As for the staff loan scheme he confirmed this but said it was stopped in 2004 by head office. Tepora however continued doing it something which Tepora confirmed in her own evidence given in cross examination. Both agreed the loans were funded out of the companys petty cash rather than from sale proceeds for the day.

The defendants further evidence was that in September 2006 he bought a taxi and he resigned from the company to drive his taxi. The company accepted his resignation but asked him to stay on a while to teach the new manager Isakara. He agreed but on 4 September 2006 he took over Teporas job as she was on leave. In the course of that day Isakara approached him concerning a shortage of $200.00 from the previous week. He told Isakara to ignore the matter and subsequently he was stood down from work by Isakara for the rest of the week and on his return on 11 September 2006 was told he and Tepora were dismissed and the matter was being referred to the police. He thought at the time it was because of the $200 shortage. He denied having an affair with Tepora and denied stealing any of the companys money. He also denied knowledge of company funds going missing or being misused by the cashier maintaining it was not his job to check the DSA sheets or what the cashier was doing.

The main witness against the defendant is Tepora his cashier lover. But by her own testimony she is an accomplice who participated in the defendants thefts. The law as to accomplice evidence was authoritatively laid out in three propositions by Lord Simonds LC in Davies v DPP [1954] AC 378, 399 (HL):

In a criminal trial where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn the jury that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated.

Where the judge fails to warn the jury in accordance with this rule, the conviction will be quashed, even if in fact there be ample corroboration of the evidence of the accomplice."

As this is a judge alone matter, it is only sufficient that I direct my mind to the danger of convicting on the uncorroborated evidence of an accomplice but I am permitted to do so if satisfied as to its truth and reliability. That this is the law that applies in Samoa is established by cases such as Police v Leiloa [2002] WSSC 42 and Saolele v Attorney General [2007] WSCA 4 a decision of our Court of Appeal.

There may be an argument for not singling out accomplice evidence for such special corroboration. See for example the Canadian Supreme Court decision in R v Vetrovec (1982) 136 DLR 3rd 89 and in some jurisdictions change has been effected by statute, thus in New Zealand by the Evidence Amendment Act No.2, 1986. In the area of corroboration of sexual complaints our jurisdiction has followed the lead of many others in departing from the traditional common law practice and evidence of a complainant in a sexual case no longer requires corroboration or a special warning: see Police v AB [2003] WSSC 24 and Police v Avia (unreported) 30 March 2007. This approach however has not yet been extended to the field of accomplice evidence and until the matter is fully argued in an appropriate case or until the Appellate Court decides otherwise, the law to be followed should be that reflected in the authorities cited supra namely that although a judge may convict on the uncorroborated evidence of an accomplice he must warn himself of the dangers of doing so.

As to the nature of the corroboration required I believe the following extract from JD Heydons Cross on Evidence 5th Aust. Edition at para. 15105 represents the law that should be applied in this jurisdiction.

"It was said in R v Mullins (1848) 3 Cox CC 526,531 that corroboration does not mean that there should be independent evidence of that which the accomplice relates, otherwise the accomplice’s testimony would be unnecessary. It would merely be confirmatory of other independent testimony. In the leading case of R.v Baskerville [1916] 2 KB 658 (CCA) Viscount Reading LCJ said that what is required is some additional evidence rendering it probable that the story of the accomplice is true, and that it is reasonably safe to act upon his statement. This is a very general remark, but the judgment of Viscount Reading LCJ is of the greatest importance because it settles a conflict between two views concerning the nature and extent of corroboration. According to the first view, independent evidence tending to verify any part of the testimony of the accomplice would suffice, while the second required that the evidence should not only show that part of the accomplices testimony is true, but it should also implicate the accused."

The second view was favoured by the court in R v Baskerville. To quote from the judgment of Lord Reading:

"We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.......... The nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused."

As noted in Cross it would seem the decision in favour of the second view is sound on principle because "false evidence given by an accomplice is commonly regarded as more likely to take the form of incriminating the wrong person than imagining the crime charged.": per Lord Macdermott in Tumahole Bereng v R [1949] AC 253, 265.

The evidence of Tepora is unsatisfactory in many respects. She is a self confessed accomplice who also stole company funds. She confirmed in cross examination she was originally charged with theft as a servant but these charges were reduced to lesser charges which the prosecution have withdrawn. She is now the key witness and corner stone of the prosecution case. She is the defendants ex-lover and while it is not clear from the evidence why she and the defendant are no longer in a relationship she said this in cross examination:

"Q: by counsel for the defendant: I put it to you Tepora that because you are getting away with these incorrect DSA sheets being sent to Pago you stayed on and continued to do that, continue to send the incorrect amounts to Pago because you are pocketing money from the till.

Q: and now you want to drag the defendant down with you, is that now what’s really happening here?

That is a clear indication of her motivation, in her words "to drag the defendant down with her." She was employed in a lucrative position and unlike the defendant who resigned to drive his taxi she wanted again in her words "to continue pocketing money from the till" but she could not because she was terminated by the new manager. Her animosity to the defendant was clear not only when she gave her evidence but also from her attempts to implicate the defendant in writing up of the DSA sheets. Attempts which the defendants counsel showed in cross examination to be largely unjustified as almost all the relevant sheets were in her handwriting alone. There were also inconsistencies in several areas of her evidence that became apparent during cross examination. All in all her demeanor was unimpressive, her credibility very suspect. I would not convict on the basis of the uncorroborated testimony of such a witness.

The evidence of her co-workers does little to assist her. Their evidence does not directly implicate the defendant in the thefts or the making of the false entries by Tepora and while their evidence is independent evidence it is evidence that connects or tends to connect the defendant with the criminal rather than the crimes. For I have no doubt that the two of them were as these witnesses observed in a closer relationship than boss to employee. As observed by Lord Reading in R v Baskerville the nature of the corroboration required necessarily varies according to the particular circumstances of the case. The corroboration sought to be relied on here is in my respectful view too thin to support a very unconvincing accomplice.

There is no question the defendant was a poor manager. But that is not surprising. His background indicates he was trained and qualified as a mechanic. He had no administrative expertise or experience prior to accepting the position of manager of the Apia branch of the company, neither did he have or seem to display any accounting knowledge. Add lust to the mix and "e blur uma mea uma" (everything becomes blurry). I suspect the defendant may have been aware his paramour was helping herself to the till because it is as the prosecution submit difficult to accept that as her lover and manager he was blissfully ignorant of the full extent of her activities but suspicions cannot found a conviction and the defendant in the witness box was a far more credible witness than Tepora. If it is sought to found guilt as an aider and abettor of Tepora’s thefts that exercise is impossible on the evidence presented to the court because that evidence does not show or tend to show which thefts if any he may have been aware of but turned a blind eye towards.

The onus in every criminal matter is on the prosecution and the standard to be achieved is high, that of proof beyond reasonable doubt. The defendant need prove nothing. The evidence adduced in this case falls short of the standard and the law requires the defendant be given the benefit of any reasonable doubt the court may have as to his guilt.

Supreme Court of Samoa

Police v Silipa [2008] WSSC 81 (5 September 2008)