Police v Chankay [2009] WSSC 72 (19 June 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

LUCIA SUNHUI CHANKAY, female of Taufusi.
Accused

Counsels: Mr G. Patu for the prosecution
Mr S. Leung Wai for the accused

Decision: 19 June 2009

DECISION OF NELSON, J.

Six charges face the accused. Firstly, charge number S1748/08 that on 17 March 2008 while a servant of the Samoa National Provident Fund she did steal $2,300 in money the property of the said Samoa National Provident Fund her employer. The second charge S1346/08 is that on the 28 March 2008 while a servant of the Samoa National Provident Fund she did steal the sum of $4,000 belonging to her employer the said Samoa National Provident Fund. The third is charge S1345/08 that on the 4 April 2008 while a servant of the Samoa National Provident Fund she did steal the sum of $4,816.88 also money belonging to her employer the Samoa National Provident Fund. The next charge is S1001/08 alleging that on the 14 April 2008 while a servant of the Samoa National Provident Fund she did steal the sum of $200 being monies belonging to her employer the said Samoa National Provident Fund. The next is S1380/08 alleging that on the 21 April 2008 while a servant of the Samoa National Provident Fund she did steal the sum of $800 belonging to her employer the Samoa National Provident Fund. And the final charge is S769/08 alleging that on the 25 April 2008 while a servant of the Samoa National Provident Fund she did steal the sum of $3,000 being monies belonging to her employer the said Samoa National Provident Fund.

The accused is a 31 year old female who worked for the Samoa National Provident Fund from May 2007 to May 2008. She was one of three cashiers in the Finance Section. Each cashier in the section had their own cashier's room and her duties like any other cashier were to receive monies from clients of the fund. The monies were of three kinds, either loan repayments or investment payments or payments for NPF contributions.

The procedure was when money was received details as to the clients name, amount and type of payment were entered by the cashier into her computer database and once that was done and verified the computer would print out a receipt. The original white coloured receipt would be given to the client and a duplicate yellow coloured receipt would be retained in a roll in the receipt printer. The evidence was that all receipts were printed out on a printer in the cashier's room. At days end the printer would print the whole roll of duplicate receipts showing the receipts for the day and the cashier would tear off the roll. The cashier would count his/her cash and cheques received for the day, would post it on to the computer database and electronically send it to the IT section of the National Provident Fund.

The IT section is located in a separate room in another part of the office and comprised a number of people including data personnel employees. The cashier would then go to the IT room where the electronic report called the "daily report" or sometimes referred to as the "cashiers edit", would be printed out. He/she would uplift the printout and take it back to the cashiers room to check as against the cash and cheques received, then would take it together with the cash and cheques as well as the duplicate roll of receipts to a supervisor to check. The evidence was there was at the time three supervisors responsible for checking the cashier's monies: Moana Mulipola, Akenese Su’a and Tifi Tifi. One of these three would do the checking though usually it would be Moana or Akenese.

The accused's evidence was there never was an occasion when her money was short or did not balance up with her documentary records. After checking by the supervisor, the supervisor and the cashier would sign the back of the daily report and the accused in her evidence testified that the checker was also required to check any cancelled receipts. Such a receipt would have "cancelled" on the duplicate receipt and required the authorization of one of the managers either Jane Ativalu or Tifi. She also testified that while the normal procedure is the casher signs after the cash is checked, sometimes it was necessary for the cash and documents to be left with the checking supervisor who would stay behind and check it because it was time to knock off. It is the checkers job to check the cash and the documents and then lock away the money. The next day the IT people such as Michael Stowers would receive the duplicate receipts and the daily report or the cashiers edit and would perform their work in respect of those documents. Any discrepancies would be by virtue of all these checking procedures be easily discovered by either the checking supervisor or the IT personnel.

The prosecution called a number of witnesses comprising of clients whose monies were allegedly misappropriated by the accused as well as members of the checking section and the IT section of the Fund. The first of the clients to testify was Moana Vito who coincidentally also works for the Fund but on the 28 March 2008 made a loan payment of $4,000 to the accused towards their family loan account styled Vitos Fun Rides. For that she was given receipt number 6018046 produced as Exhibit "P-1" for the prosecution. Her evidence was she checked the family's loan account in July 2008 using Michael Stowers computer and noticed that the payment had not been credited to the account. She accordingly reported the matter to the Fund and after investigation the necessary amount was credited to the family's loan account.

Counsel for the accused has objected to the admissibility of this receipt as well as all computer generated documents relied on by the prosecution in this case. It is alleged that they are hearsay because they are reproductions by machine of records created by the accused and if it was sought to establish by those reproductions the truth of what is in them then it is hearsay unless tendered by and through the accused person. Counsel cited the English Court of Appeal decision in R v McCarthy & others [1997] EWCA Crim. 2998 (20/11/1997) in support of his argument as well as article 9(5) of the Constitution which states:

"No person accused of any offence shall be compelled to be a witness against himself."

The rule against hearsay is one of the oldest and probably most confusing rules of the common law. Lord Reid once famously remarked in Myers v DPP [1965] AC 1001, 1019 that:

"it is difficult to make any general statement about the law of hearsay which is entirely accurate."

The learned authors Cross on Evidence 7th edition observe that its definition and the ambit of its exceptions are both unclear and its application often frustrates the reception of apparently satisfactory evidence. So much so that in many overseas countries it is the subject of much legislation and in New Zealand there has been recent recognition by the Court of Appeal of a general residual exception to the hearsay rule. This exception has three distinct requirements: relevance, inability on the part of the primary witness to be called and reliability, either inherent or circumstantial or both justifying its admission in spite of the dangers against which the rule was designed to guard. This the Court of Appeal did in R v Manase [2001] 2 NZLR 197. Such an approach is consistent with the approach advocated by no lesser person than Lord Denning, former Master of the Rolls of the English Courts who advocated that all evidence should be admissible, the goodness or badness of it only goes to its weight not admissibility: Garton v Hunter [1969] 1 All ER 451.

After hearing argument on the matter I indicated to counsels that I found the documentary evidence admissible and would give my reasons in the final decision. My reasons are essentially three-fold. firstly the issue of hearsay in my view does not arise in the matter. The records in question are admissible as direct evidence tending to show the accused committed a crime. They are evidence of an admission of sorts. It is just as admissible as any other document that has been produced, written up or drawn up by an accused person. There is no dispute the accused in this case created the relevant records, whether they be receipts for payments to clients or other records such as the cashiers edit.

The evidence is that like receipt number 6018046 they were produced by the accused and given to particular people. I accept they are documents generated by a computer in the case of the receipt, by the accused's printer. But they are the direct result of data inputted into the machine and the systems by the accused herself as cashier prefix number 6. They were not inputted by any other person. They were created by the accused and the elements of hearsay do not arise merely because they are inputted into, recorded by and reproduced by a machine or computer. They are receivable as "real" as opposed to second hand evidence and are receivable as a documentary admission tending to show the commission of an offence.

It would be different if after the accused inputted the data or created the record a third party or the computer system itself by virtue of some intrinsic programme intervened and interfered with the record created. That was the type of situation from which R v McCarthy arose and that case is also distinguishable because of the particular statutory framework and provisions with which it was concerned and which the court was interpreting. A statutory framework not found in our Evidence Ordinance 1961.

Secondly, the evidence is admissible as circumstantial evidence and as part of the res-gestae of this case. In fact it is at the very core of the case because much of the prosecution evidence against the accused is circumstantial and reliant on inferences as no-one saw the accused physically steal any money. As cited by the prosecution in their closing submission, Pollock CB in R v Exall (1866) 4 F & F 928 in a celebrated passage said:

"It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link break, the chain would fall. It is more like the case of a rope comprised of several cords. One strand of the cord might be insufficient to sustain the weight, but three strands together may be quite of sufficient strength. Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion, but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of."

The evidence of the acceptance from clients of monies marks the beginning of the rope of alleged offending as much as the generating of the relevant records. They are links in the chain of alleged circumstantial evidence and in my view are provable as such.

The third and final reason this evidence is admissible is pursuant to modern trends in the Law of Evidence as recognized by the Court of Appeal in Manase i.e. as part of a residual discretion to include such evidence provided it satisfies the tests outlined in Manase. First that it is relevant, secondly that the primary witness in this case the computer or the machine is incapable of being called and thirdly if it is reliable. And there is no evidence in the present case to suggest doubt as to the accuracy or authenticity of the computer system used by the accused and the Fund. The only suggestion made by the accused was that other employees falsified the records and stole the money. This does not amount to a challenge to the authenticity and reliability of the relevant computer technology or programmes. As correctly pointed out by the English Court of Appeal in R v Minors [1989] 1 WLR 441.

"The law of evidence must be adopted to the realities of contemporaneous business practice. Mainframe computers, minicomputers and microcomputers play a pervasive role in our society. Often the only record of a transaction, which nobody can be expected to remember, will be in the memory of a computer. The versatility, power and frequency of use of computers will increase. If computer output cannot relatively readily be used as evidence in criminal cases, much crime (and notably offences involving dishonesty) will in practice be immune from prosecution."

The accused's objection therefore to admissibility of these documents is overruled but I do commend counsels for the thoroughness of their submissions on this interesting point.

The next prosecution witness called was Tuputa Uliata who triggered the Fund investigation of the accused. His evidence was that on 14 April 2008 he paid the accused $200 for his loan and was given receipt number 6018830 produced as Exhibit "P-2" for the prosecution. At his request and as per his usual practice he asked the cashier to write in at the bottom of his receipt his current loan balance. This she did. On 24 April 2008 some 10 days later he made a further $200 payment and was shocked when the loan balance written in by a different cashier was only five or so tala different to the previous balance. He therefore went home and checked his records and concluded that the accused did not credit his payment of 14 April 2008 to the account. He confronted the accused the next day and her answer to him was the money must have been absorbed by interest charges. He said he did not accept this as the amount seemed too large so he took the matter further and was referred to Michael Stowers of the National Provident Fund. His further testimony was eventually the Fund did credit this payment to his account.

The third prosecution witness called was Fa’ataui Solofuti who on the 21 April 2008 made an $800 loan payment to the accused for their family's loan and was given by the accused receipt number 6019199. He too got her to write on the bottom of the receipt their loan balance and the receipt was produced as Exhibit "P-3" for the prosecution. When he received the family's loan statement in August 2008 he found that the April payment was missing so he too lodged a complaint with the Fund.

Similar evidence was given by one Lynn Wong Ling concerning her final loan payment of $4,816.88 made to the accused on 4 April 2008. She was given receipt number 6018627 produced as Exhibit "P-6" for the prosecution by the accused and she was surprised when subsequently she was advised by the Fund her loan account was still outstanding. She showed them the receipt after which the Fund cleared her loan account.

The last client witness called by the prosecution was Toafa Su’a a secretary for Southpac Cleaning Company who on 25 April 2008 made a $3,000 loan payment to the accused on behalf of her employer. The accused gave her receipt number 6019630 produced as Exhibit "P-5" for the prosecution. This payment as will be seen later plays a crucial role in this matter.

The first of the National Provident Fund witnesses called was Michael Stowers, the Senior Accounts Clerk Revenue. He testified his duties include checking of cashiers records and receipts and it was to him that Tuputa Uliata came with his receipt and his missing $200 payment on 24 April 2008. His evidence was he checked Tuputa’s account and confirmed the payment did not show on the account so he searched for the duplicate receipt from the duplicate receipt roll but could not find it, neither could he find a record of it in the cashiers edit record for that day. He therefore checked the yellow duplicate roll for the entire day produced as Exhibit "P-7" for the prosecution and found two matters of note. Firstly the roll had been torn after receipt number 6018829 the receipt immediately preceding Tuputa’s receipt and it began again at receipt number 6018831. The receipt missing was the duplicate receipt recording Tuputa’s payment and when he checked the cashiers edit for that day produced as Exhibit "P-8" for the prosecution he found Tuputa’s payment was not shown. The edit went straight from 6018829 to 6018831. 6018830 was not in the daily edit record. He marked the edit with yellow highlight accordingly and noted that the edit had however been signed by both the accused as cashier and Moana Mulipola as checker. He suspected somehow the receipt had been cancelled and removed from the system but said a cashier can only do that with the approval of the Finance Section Head Jane Iona and that such approval must be in writing and signed and the original receipt must be annexed to the duplicate roll record. None of that was done in respect of Tuputa’s receipt. So he took the matter to the head of their IT section Mr Peter Groen to see if they could ascertain what had happened. Groen was not at work that day and he was only able to see him the next day 25 April 2008. It is convenient at this point to switch the narrative to the evidence of Mr Groen.

He is the Fund IT Consultant and has been so for nearly 15 years. Prior to that he worked for Computer Services Limited managing the NPF portfolio. He testified he was the one who set up the Funds computer systems and programmes and is fully conversant with how they operate and how they were designed. It is not necessary to review all his evidence in detail but he did confirm the receipting system in use and added that each cashier has their own password, own user ID for their computers as well as their code number. In the case of the accused her code prefix was "6" and these allowed transactions to be tracked down to the cashier concerned. He also said that all the receipts are individually and sequentially numbered and the receipt numbers are never reset back to "0". At days end the IT section combines all the daily edits and payments are entered into customer's accounts. In relation to cancellation of a receipt he said that a cashier can cancel a receipt but only with the manager's approval and the original receipt must be retained to prove it has been properly cancelled. And at days end the computer would automatically delete the cancelled receipt from the system so that it would not appear on the cashier's daily edit and thereby affect the edit totals. He also testified the IT section has the power to cancel a receipt but only with the approval of the Finance Section Head but to his knowledge this has never been done.

On the morning of 25 April 2008, Michael Stowers came to him about a missing receipt so he used a special programme to try and track it down but discovered that it was missing from the system altogether. So he asked for the duplicate receipt and Stowers told him that too was missing and the roll was torn at the relevant part. He became very suspicious, the expression the witness used was something "stinks to him". He decided there and then to change the receipting programme so that when a receipt gets cancelled, the system would capture it anyway by the computer copying the cancelled entry to a file. This was done without anyone's knowledge and on the afternoon of that day when all the cashiers had closed off their edits he brought up the relevant cancellations file and saw that the system had cancelled the $3,000 Southpac Cleaning payment made to the accused. He immediately instructed Mr Stowers to retrieve the duplicate roll as it was possible this was a legitimate cancellation in which case the original receipt duly approved for cancellation would be appended to the roll or could otherwise be located. Stowers came back and told him the relevant duplicate receipt has been removed from the roll, see Exhibit "P-13" for the prosecution. As with Tuputa’s $200 receipt the duplicate roll had been torn off at the immediately preceding receipt 6019629 and the roll commenced again at 6019631. The missing $3,000 receipt 6019630 was not to be found anywhere and the daily edit produced as Exhibit "P-14" for the prosecution had no record of the payment. The payment was missing from the system. The cancelled receipt was retrieved by Mr Groen from the system and a copy printed out and produced by the witness as Exhibit "P-21" for the prosecution. It shows that it was a cash payment and that it was made to cashier number 6, the accused. Groens further evidence was that the accused would have had no idea the cancelled receipt had been copied by the system pursuant to the programme change he had effected. He also said the accused was notorious for coming to the IT section to pull her receipts back from the system to correct errors and this happened at least once a week with her, but with other cashiers this only happened once every six months or so. The end result of his investigations were reported to the Head of the Finance Division of the Fund.

The accused sought to challenge the evidence of Groen by suggesting that it was possible for someone from the IT section to have carried out the cancellation using the accused's computer and/or user ID and password and then doctoring the roll without the accused's knowledge. The witnesses answer was anything is possible but there is no one apart from him with the necessary knowledge and skill to access the relevant data. Furthermore this would also require access to not only the cash but also to the duplicate roll all without the accused's knowledge. In the witnesses words that was a lot of assumptions and what ifs.

Accused's counsel also questioned the reliability of the witnesses evidence by pointing to another entry in the edit of 25 April 2008 with the notation "cancelled" in the margin of the edit. The witnesses explanation was this entry must have been pulled back by the IT section which I understood to mean reinserted by the IT section with the notation "cancelled" beside it. And the witness again referred to the many times the accused unlike other cashiers has asked IT to put back her entries. He did however go on to say this particular entry was checked and the original receipt which was not attached to the 25 April 2008 edit was in fact located by Michael Stowers, thus demonstrating to his satisfaction that cancellation unlike the Southpac $3,000 one was a genuine cancellation.

The further evidence of Michael Stowers was that he investigated the other complaints against the accused and checked the relevant duplicate rolls and daily edits beginning with the Vito Fun Rides receipt 6018046. He found the roll was torn off after 6018045 and continued afresh with 6018047, produced as Exhibit "P-9" for the prosecution. He also found the particular payment was missing from the edit of that day produced as Exhibit "P-10" for the prosecution. In respect of the Solofuti family payment and receipt number 6019199, he found the roll was torn after 6019198 and a fresh roll started with 6019200 produced as Exhibit "P-11" for the prosecution. He also found the relevant payment was missing from that days edit produced as "P-12" for the prosecution. In respect of the Southpac payment the roll was torn after 6019629 and a fresh roll began with 6019631 produced as Exhibit "P-13" for the prosecution. Missing was the duplicate receipt in relation to the Southpac payment. Likewise the daily edit produced as Exhibit "P-14" for the prosecution did not contain any reference to the payment. In respect of Lynn Wong Ling’s payment and receipt number 6018627 his testimony was the duplicate roll produced as "P-15" for the prosecution began with receipt number 6018628 and he could not locate duplicate receipt number 6018627. Similarly the daily edit produced as Exhibit "P-16" for the prosecution began with 6018628 and there was no reference to the 6018627 payment made to the accused.

The head of the Finance Section Jane Iona was also called but her evidence does not assist greatly in these matters except to say that she became aware of the problems and the matter and upon investigation she found missing over the mid March to end April 2008 period some 17 receipts. Of these eventually seven were compensated as the relevant clients were able to produce their original receipts to prove their payments. I deduce from that the five originals produced in this matter were part of these seven. This witness also said the accused resigned in writing on 17 April 2008 effective 2 May 2008 but that the last week from 28 April 2008 to 2 May 2008 she did not work and had called in sick.

The final prosecution witness was Moana Mulipola whose duties including the checking of the accused's daily edits and also the daily banking reconciliation list showing the break-down of total cheques and cash for banking purposes. This the witness referred to as the banking checklist. She was a senior clerk of the Finance section and worked together with Akenese Sua who also was a senior clerk, able to perform the duties of checking both the banking checklist as well as the cash from the cashiers. This witness identified the accused's banking checklists for 28 March 2008 produced as "P-17" and "P-18" which are signed by the accused and showing as being checked by Akenese. As well she produced the banking checklist of 21 April 2008 Exhibits "P-19" and "P-20" for the prosecution purportedly signed by the accused and checked by her and signed by her. I am satisfied from the comparison of the signatures that this witness although she did not refer to it in her evidence also checked and signed the accused's daily edit for 14 April 2008 which had been produced as Exhibit "P-8" for the prosecution.

The evidence of Michael Stowers was that these banking checklist are initially attached to the daily edit but the IT section practice is to tear them off and keep them in a separate edit file for analysis purposes. Moana's evidence was the cashier always signs the relevant document in front of her and further that they only check the daily banking checklist not the duplicate rolls of the cashier. She also identified the accused's signature as on Exhibit "D-1" for the defence being the banking checklist for 17 March 2008 which is not the subject of any charge but which was put to her in relation to the question of the accused's signature.

That is a summary of the prosecution evidence. The defence evidence consisted of the accused only. She did not dispute her duties as cashier or the checking procedures. But in respect of the charges she denied tearing any of the duplicate rolls on the days as alleged. She said there would be no reason to tear any roll until the end of the day and while she agreed she signed the daily edits with the checking supervisor she said her money always balanced up and she denied improperly cancelling any entries. She said the authority of a manager was required before a cashier can cancel any entry but once cancellation occurs the entry remains in the system and shows up on the daily edit with the notation "cancelled" beside it. An example was the 25 April 2008 entry referred to in Peter Groens evidence. She said only the IT section know how to delete an entry from the system and then print a substitute daily edit but in any event how could she have taken any of these monies without being detected by the checkers or by the IT section themselves. Her further evidence was she only went to see Peter Groen once and that was when she was new to the job and did not know how to cancel an entry she had put in by mistake. She went to the section head Jane who referred her to Mr Groen and she said Groen fixed the problem by deleting the whole of the entry. That was the only "one incident" where she consulted Groen and she disputed his evidence that she did so all the time. I note in passing that in cross examination the accused changed this evidence from "one incident" to the following:

"Q: so you did go to see him (referring to Groen) on occasions?

A: on occasions if there is an error but not all the time."

This is slightly different from the "one incident" she referred to in evidence in chief early in her career at the NPF.

In respect of signatures the accused confirmed her signature on Exhibit "D-1" for the defence but denied she signed "P-17", "P-18", "P-19" or "P-20". She said the proof that "P-17" is not her signature is because there is no loop in the "y" of her signature unlike "D-1" which shows a distinctive loop in the "y". Similarly with "P-18", "P-19" and "P-20", she rejected these as all forgeries. In relation to being off work for the last week she confirmed this but said she was short sighted and wears contact lenses and was waiting that week for her prescription to be filled. She also stated that the police came to her home to see her that week about these matters.

In respect of the missing entries she said someone from the IT must have deleted those, not her and they were not missing when she had custody of these documents. Further that someone not her tore off the missing receipts and stole the monies. She does not know exactly how it was done but it was perpetrated by others not by her.

As to the 25 April incident and the $3,000 Southpac payment she admitted receiving the money and creating the receipt. In examination in chief she denied being responsible for this theft as with all the other alleged thefts. But when intensely questioned in cross examination by prosecution counsel she for the first time said that working with her in her booth that day 25 April 2008 was a trainee cashier named Va Matautia. Suggesting thereby that maybe it was Va Matautia who cancelled the entry, tore off the duplicate receipt and stole the money. How Va Matautia would have the knowledge to be able to do that if she was a trainee cashier and how she did it without the accused who was working in the booth at the time knowing, she did not explain.

The accused was a most unconvincing witness. Because her defence was essentially a denial of the basic elements of the prosecution case, I observed her carefully. The accused's counsel is quite correct, "she did not come across as someone who is stupid." She impressed me early on as someone who is articulate and bright but under cross examination she faltered badly and this is reflected by changes in her evidence e.g. from seeing Peter Groen in respect of "one incident" only to seeing him "on occasions" when the need arose. A more vivid example is her sudden recollection in cross examination of the trainee cashier present in her booth on 25 April 2008, the day she was caught out by the computer detective Mr Groen who unknown to anyone had changed the programmes so that it would capture any attempt to cancel entries or delete entries from the system.

The inconsistency with the "cancelled" entries has been explained to my satisfaction. Groens further evidence after being recalled at the accused's counsel insistence was that Michael Stowers was sent to investigate the duplicate rolls in respect of two transactions that day. The Southpac transaction and this cancelled transaction and he found the duplicate receipt for the cancelled transaction but not for the Southpac transaction, thus showing the cancelled transaction was a genuine cancellation.

The transcript of the accused's evidence reflects the hesitancy of her manner and uncertainty of answers under cross examination. She did not stand up to cross examination very well at all. Neither do I accept her evidence about her signatures. Yes, there is a distinct loop in the "y" in "D-1" but the beginnings of the same loop are present in "P-18" and "P-20". If there is any loop the accused should have pointed to it should have been the one in "P-8" which is the one most unlike "D-1", however she did not do that. Furthermore it is an accepted scientific fact and this is in accord with common sense that no two signatures of the same person would be exactly the same. Try writing your signature ten times and you will yourself observe the difference. There will be variations to a certain degree but the overall style and majority of features remain constant. Looking at the signatures in question it is clear to me the overall style and majority of features are the same and one does not need to be a handwriting expert to reasonably conclude they came from the same person.

But the onus is not on the accused to prove anything. It is on the prosecution to prove their case beyond reasonable doubt and the accused does not even have to testify. The real question here then is has the prosecution done this to the required standard? As prosecution counsel points out the prosecution case is by and large circumstantial in the words of Pollock in the quote from Axell, it rests on a combination of circumstances no one of which would raise a reasonable conviction or more than a mere suspicion but the whole of which taken together creates a strong conclusion of guilt that is with as much certainty as human affairs can require or admit of. The rope analogy used by Pollock is the best way to describe and understand the concept.

The prosecution evidence in this case is in my respectful view solid. The accused while employed as a cashier by the Fund received on the days alleged in the informations the sums quoted from various clients of the Fund. On 28 March 2008 she received $4,000 from Vitos Fun Ride for their loan payment, on 14 April 2008 $200 from Tuputa Uliata for his loan payment, on 21 April 2008 $800 from the Solofuti family for their loan payment, on 25 April 2008 $3,000 from Southpac Cleaning for their loan payment and on 4 April 2008 $4816.88 from Lynn Wong Ling as a final payment for her loan. She issued the original white receipts for these payments to these clients but their payments were not credited to their respective accounts on the day of payment or at any time shortly thereafter. The evidence showed it was only credited to their accounts much later when the Fund investigated this matter and the clients produced their original receipts to confirm payment.

What did happen is the loan payments were entered into the accused's computer database as they had to be in order for a receipt to be able to be generated and then was deleted therefrom and the relevant duplicate receipt removed from the duplicate receipt roll. These duplicate receipts have never been recovered but because the entries have been deleted from the accused's system they did not show up in the daily cashiers edit, hence no trace of the payments in any of these relevant edits but there is no doubting that the payments were made in cash to the accused. This meant that the cash on hand and the daily edits would balance up and unless someone checked or cross-checked the daily edit sheets and the duplicate roll at the end of the day no one would be the wiser about what happened. I am satisfied from the evidence that task was not part of the duties of the checking supervisors who seemed to focus more on checking the banking rather than anything else or the IT section to whom the documents were passed by the checkers for entry into the appropriate loan accounts and for analysis purposes. Given the large volume of transactions and money that flow through the cashier each particular day such a task would probably have been quite an onerous one although I dare say the Funds system has probably now changed as a result of this case.

All the evidence points to the accused. She received the money as cashier number 6, she was responsible for inputting the relevant data into the computer system, she kept custody of the duplicate receipt roll, she issued the original receipts to the clients, she signed off with the checking supervisor on the relevant daily edits either on the edit itself as e.g. Exhibit "P-8" for the prosecution or by way of the banking checklist as e.g. Exhibit "P-17 to P-20", she kept custody of the monies until days end when it was together with all the records handed over to the checking supervisor and subsequently to the IT section. Even if someone else could access the accused's computer and there is no evidence to that effect, the evidence is that each cashier worked alone in a locked cubicle. No one could access the relevant database unless they knew the accused's user number and password. Although she maintained the IT people had the ability to do this, the evidence of the NPF system designer and programmer Mr Groen is that no one except him has that expertise. In any event if someone in the IT section had altered the record it would have been pointless as the cash would have already been locked away after checking by the supervisors before the records were sent to IT. The only way this all could have happened as the accused maintained is for someone in IT to be in collusion with one of the checking supervisors and there is no evidence supporting such a suggestion.

The evidence shows the accused had the ability to delete entries from the system. It shows she had the opportunity to also remove the relevant duplicate receipts and she would have known the checking supervisors never check either the rolls or the daily edit sheets or cross check the two. The accused activities went unnoticed during late March and early April and may well have gone undetected until after she left on 2 May 2008, the date of effect of her resignation. But for the fact that on 24 April 2008 Tuputa complained about his $200 and the whole scheme began to unravel. Mr computer detective Mr Groen was called in and he set the trap. On 25 April 2008 the trap was sprung and the accused has been caught squarely in the net. Her efforts to deny liability in this matter cannot be accepted. Her explanations are not credible. She is asking the court to believe her and her alone and disbelieve everyone else. I am unable to do that.

I am satisfied beyond reasonable doubt that you have stolen these monies as alleged in charges S1346/08 the Vitos Fun Ride payment of $4,000, charge S1001/08 Tuputa’s $200 payment, charge S1380/08 the Solofuti Family payment of $800, charge S769/08 the Southpac payment of $3,000 and charge S1345/08 Wong Lings final payment of $4,816.88. And further that these monies were the property of your employer at the time the Samoa National Provident Fund and thereby you have committed the offences that you have been charged with.

There is a sixth charge namely S1748/08 in respect of a payment on 17 March 2008 in the sum of $2,300.00 but the evidence did not address that charge. That charge is accordingly dismissed. I also note from my records that counsel for the accused referred to seven charges against the accused but I have been unable to find a seventh charge. If there is a seventh charge no evidence has been called regarding any other alleged sums in this matter so that if there exists a seventh charge that too should be dismissed for lack of evidence.

The accused is remanded on bail to the 13 July 2009 for a Probation Report and sentence.

JUSTICE NELSON