Police v Tovia [2010] WSSC 108 (25 October 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

POLICE
Prosecution

AND:

PETER MASELINO TOVIA
male of Vaoala.
Accused

Counsel: L Taimalelagi for prosecution
T Toailoa for accused

Hearing: 21, 22, 23 June 2010; 19, 20, 21, 22 July 2010
Submissions by counsel: 4 August 2010
Judgment: 25 October 2010

JUDGMENT OF SAPOLU CJ

Introduction

1. The accused Peter Maselino Tovia was 18 years old when he finished school in 2005. He then found a job with Insel Fehrman Hotel ("the hotel") where he started off on 1 January 2006 by answering telephone calls. After about one or two months, he was employed at the reception of the hotel as a front desk clerk until his termination in September 2006.
   
2. The accused is charged with eight counts of theft as a servant. The charges relate to a period from 28 July to 10 September 2006 while the accused was employed at the hotel's front desk. Part of the accused's duties at the front desk was to receive payments from guests of the hotel and to receive and verify cash, cheque and credit card transactions from the previous shift. Payments by the hotel guests are normally made by cash or credit card and are usually made at the time a guest leaves the hotel.
   

Work shifts at the hotel's front desk

3. The work of the employees at the front desk is divided into three shifts. These are the morning shift which is from 7am to 3:30pm, the evening shift which is from 3:30pm to 11:30pm, and the night shift which is from 11:30pm to 7:30am the following morning. The accused normally worked in the evening shifts.
   
4. It is the policy of the hotel that every front desk employee must leave the hotel at the end of his or her shift and not to return to the hotel until his or her next shift. Likewise, a front desk employee who has a day-off is not supposed to return to the hotel until his or her next shift.
   

Procedures to be followed when a guest makes a payment

5. When a guest makes a payment at the front desk a receipt from the receipt book is issued to the guest by the employee on duty at the front desk during the shift in which the payment is made. The receipt would show the name of the guest who made the payment, the date of the payment, the amount of the payment, the mode of payment, and what the payment was for. There is a column in the receipt which shows how a payment is made. If, for example, payment is made by cash, then the appropriate box next to the word "cash" would be ticked; if payment is made by cheque, the appropriate box next to the word "cheque" would be ticked and so on. However, if payment is made by credit card, then the box next to the word "cheque" is supposed to be ticked.
   
6. The entries in the duplicates of the receipts which remain in the receipt book are then posted into a document called the Temporary Cash Receipt Listing ('the TCRL") by the front desk employee who received the payments and issued the receipts. The TCRL is usually filled outby the employee during his shift when he has spare time. The TCRL shows, inter alia, the receipt numbers, the date the payments were received, the names of the guests who made the payments, what the payments were for, the mode of payment, the amount of each payment in Samoan currency, the total amount of the payments received during a particular shift, and the signature of the employee who received such payments. If there is unused space in the TCRL, that unused space in the TCRL is used by the front desk employee for the next shift for posting from the receipts in the receipt book the payments he received from hotel guests during his shift.
   
7. The last document to be prepared and filled out by a front desk employee working a particular shift is called the Banking Rollover Summary ("the BRS"). This is a summary of all payments received by an employee during his shift. This document is normally prepared towards the end of a shift. It shows the cash payments received from hotel guests in Samoan currency and their total amount, payments received from guests in foreign currency and their equivalent in Samoan currency as well as their total amount in Samoan currency, credit card payments received from guests and their total amount, and payments made out of the petty cash. At the bottom of the BRS are the words "Prepared and counted by" and then the words "Verified and Received by". The words "Prepared and counted by" refer to the front desk employee who had worked in the shift that was coming to an end and who had prepared the BRS for that shift and counted the money received during that shift less any petty cash payments authorised by the hotel manager. The words "Verified and Received by" refer to the front desk employee who will be working in the next shift that follows and whose duty is to receive and verify the total payments received by the employee who had been on duty during the previous shift. The purpose of the BRS is to enable the front desk employee of the next shift to verify the total payments received by him from the front desk employee of the previous shift. This process of verification is therefore supposed to be carried out by both the employee of the new shift and the employee of the previous shift, that is, the shift that is coming to an end. It was referred to in parts of the evidence as "the handover period". At the conclusion of the verification process, the employee that worked the previous shift is supposed to sign next to the words "Prepared and counted by" and the employee who is taking over the new shift is supposed to sign next to the words "Verified and Received by".
   

Methods of processing credit card payments

8. When a guest makes a payment using a credit card there are three ways of processing such a payment. Firstly, if the guest is in possession of his credit card, the front desk employee would take the credit card and swipe it in a machine called the eftpos machine. This is the normal way of processing a credit card payment. Secondly, if the guest is not in possession of his credit card, the front desk employee would manually enter or punch the credit card number and expiry date into the eftpos machine that is, if the guest has with him his credit card number. Thirdly, when the power goes off and the eftpos machine cannot be operated the "manual system" will be used to process a credit card payment.
   
9. Whichever method of processing a credit payment using the eftpos machine is used, the eftpos machine will generate two receipts. Each receipt will show the credit card number, the expiry date of the credit card, the amount paid, the date of the transaction, and the time of the transaction. The guest will then sign both receipts and one receipt will be given to the guest and the hotel will keep the other receipt. That eftpos receipt kept by the hotel would then be put in the till at the front desk. Such a receipt would be passed on to the employee who would be on duty in the next shift and so on until the end of the night shift from 11:30pm to 7am when all the money and eftpos receipts are handed over to the manager of the hotel for banking. So the hotel will have a record of the number of a guest's credit card until there is a banking made when any eftpos receipts will be lodged with the bank. The risk to a guest which is involved here is that a dishonest hotel employee who is aware of the credit card number can charge a guest's credit card with a transaction that was not made by the guest by manually entering or punching the credit card number into the eftpos machine without the knowledge of the guest who is the holder of the credit card. Such employee may then forge the guest's true signature which appears on the back of the eftpos receipt onto a new eftpos receipt.
   
10. From the evidence adduced by the prosecution, it is clear that training is required for a front desk employee on how to process credit card payments whether by swiping the credit card in the eftpos machine where the guest is in possession of his credit card and by entering the credit card number into the eftpos machine where the guest is not in possession of his credit card. Training is also required on how to operate the "manual system" to process a credit card payment when the power is off.
    

The charges

11. As already mentioned, the eight counts of theft as a servant against the accused all relate to a period from 28 July to 10 September 2006 while the accused was working as a front desk clerk at the hotel. In each of these counts the accused is charged as follows:
    
    • (i) On 28 July 2006 the accused did steal $390 in money being the property of his employer the Insel Fehrman Hotel;
      
    • (ii) On 29 July 2006 the accused did steal $282.73 in money being the property of his employer the Insel Fehrman Hotel;
      
    • (iii) On 4 August 2006 the accused did steal $1,146.10 in money being the property of his employer the Insel Fehrman Hotel;
      
    • (iv) On 5 August 2006 the accused did steal $44 in money being the property of his employer the Insel Fehrman Hotel;
      
    • (v) On 6 August 2006 the accused did steal $32 in money being the property of his employer the Insel Fehrman Hotel;
      
    • (vi) On 4 September 2006 the accused did steal $1,000 in money being the property of his employer the Insel Fehrman Hotel;
      
    • (vii) On 9 September 2006 the accused did steal $612.46 in money being the property of his employer the Insel Fehrman Hotel; and
      
    • (viii) On 10 September 2006 the accused did steal $122 in money being the property of his employer the Insel Fehrman Hotel.
      
12. All the above charges have been laid under ss.85 and 86(i) (g) of the Crimes Ordinance 1961. Section 85 is the offence provision which creates the ordinary offence of theft and s.86 is the penalty provision which provides the maximum penalty of seven years imprisonment for an employee who is convicted of stealing property which belongs to or is in the possession of his employer.
    

Charge 1

13. The first charge alleges that the accused on 28 July 2006 did steal $390 in money which was the property of his employer the Insel Fehrman Hotel. The case for the prosecution proceeded on the basis that the accused dishonestly or fraudulently took the sum of $390 from his employer for his own use and then process a credit card transaction to cover up for the money he had taken. In consequence, the defence for the accused proceeded on the same basis upon which the case for the prosecution is proceeded.
    
14. To facilitate understanding of the complicated evidence in this case, what happened in relation to charge 1 may be related as follows. On 27 July 2006, a guest by the name of Elizabeth Blair ("EB") who had stayed at the hotel checked out of the hotel and paid for her accommodation and other expenses at the front desk using a visa credit card. The evidence shows that that credit card payment by EB was made during the morning shift from 7am to 3:30pm. The employee who was on duty at the front desk at that time was the witness Catherine Esau ("CE") who was one of the hotel employees working at the front desk. The credit card payment by EB was obviously made to CE. So CE must have swiped EB's credit card in the eftpos machine which must have generated two receipts each showing the number of the credit card and its expiry date. In accordance with normal procedures, CE must also have witnessed EB sign on both receipts. One receipt must then have been given to EB and CE kept the other receipt for the records of the hotel for banking with the hotel's banker, the ANZ bank, the following day. EB then left the hotel on 27 July 2006 taking her credit card with her.
    
15. The following day, 28 July 2006, another guest by the name of Lisa Toleafoa ("LT") checked out of the hotel. This was during the morning shift at the front desk. On duty at the front desk at that time was the witness Christine Passi ("CP") another hotel employee who was working the morning shift. CP issued a receipt dated 28 July 2006 to LT for the amount of $390 and put a tick in the box next to the word "cash" where it is marked "How Paid" in order to show that the payment by LT was made by cash.
    
16. Later on during her morning shift, CP filled outthe TCRL for her shift from the information contained in the duplicates of the receipts in the receipt book which were issued during her shift. One of the entries made by CP in her TCRL for 28 July 2006 shows cash payment of $390 made by the guest LT. The word "Prepaid" was also written in. However, next to the word "Prepaid" is the word "visa" which had been written in by someone else. CP in her oral evidence testified that the word "Prepaid" was written in by herself to show that LT had paid for her accommodation in advance, that is to say, before LT had arrived at the hotel. However, CP denied that she had written in the word "visa" next to the word "Prepaid" and she said the word "visa" was not there when she filled outher TCRL. She could not, however, recognise the handwriting for the word "visa".
    
17. The next document to be prepared by a front desk employee after the TCRL is the BRS which is often filled out by an employee toward the end of his or her shift. CP testified that towards the end of her morning shift on 28 July 2006, she completed a BRS which provided a summary of all the payments she had received during her shift. CP further testified that after she had filled out and completed her BRS, she handed it over to the accused, who was to be on duty at the front desk for the evening shift from 3:30pm to 11pm, to verify. At the same time, she handed over to the accused the receipt book, the TCRL she had completed for her morning shift that day, and the money she had collected. CP also testified that she and the accused then signed the BRS. This must mean that CP signed at the bottom of her BRS next to the words "Prepared and counted by" and the accused signed next to the words "Verified and Received by". CP further testified that the BRS she had filled out and completed did not include any payment made with a credit card by a guest of the hotel as all the payments received during her morning shift on 28 July 2006 were made by cash.
    
18. Evidence was also adduced by the prosecution which shows that on a later date, which would appear to have been sometime towards the end of August 2006, the hotel received a notification letter from its banker, the ANZ bank, that the guest EB, who had stayed at the hotel and checked out on 27 July 2006, had disputed the amount of $390 charged to her credit card on 28 July 2006. As a result of the internal investigation that was carried out within the hotel by the witness Alosio Lafaele, the then acting accountant for the hotel, and the police investigation that followed, the accused and the witness Catherine Esau ("CE") who was also employed at the front desk at that time, were both suspended from their employment with the hotel. Only the accused has been charged with theft as a servant but not CE. Both have not been re-employed by the hotel.
    
19. The witness CP also testified that the BRS she had prepared and filled out during her morning shift on 28 July 2006 and verified by the accused could not be located. However, a different BRS dated 28 July 2006 and relates to the morning shift for that day was located and produced in evidence by the prosecution. According to CP that is not the BRS that she filled out and completed for her morning shift on 28 July 2006. She said that the handwriting in this BRS is that of the accused. This different BRS also shows that a credit card payment for $390 was made during CP's morning shift on 28 July 2006 but CP testified that she did not receive any credit card payment during her shift that day. An unrecognisable signature also appears at the bottom of the BRS next to the words "Prepared and counted by" instead of CP's signature but next to the words "Verified and Received by" appears the signature of the accused. The only reasonable inference to be drawn from this evidence is that this new BRS was filled out by the accused and he then signed next to the words "Verified and Received by". The BRS that CP had filled out and completed could not be found and a possible inference to draw is that the accused or someone else must have disposed of that BRS.
    
20. Under cross-examination of the accused by counsel for the prosecution the following questions were asked by counsel and the answers given by the accused:
    

Q. "As you heard from the evidence given by Christine right at the start she was shown a banking rollover summary being 28 of July 2006 and she claims that the banking rollover summary that was shown, she didn't complete that herself, do u recall that?

A. Correct

Q. In fact Christine claimed that it was you who completed the banking rollover summary.

A. Your Honour that allegation is wrong

Q. Peter you had 'verified and received' money and credit card transactions that had been processed by Christine on that same day, didn't you?

A. No

Q. Peter you've just been handed the Exhibit P1, banking rollover summary dated 28 July 2006, do u see that?

A. Correct

Q. And do you recall from Christine's evidence earlier that she did not complete this document?

A. Correct

Q. Also based on the evidence of Christine she said that she had worked together with you doing a rough calculation or a rough working out, that's what happened on this day, wasn't it?

A. I do not know

Q. Peter I put to you that on this day when Christine finished her shift she had run out of time, however, before she did leave, you and Christine were able to do a rough calculation isn't that correct?

A. No

Q. And so Christine had left given that she finished at 3:30, you then verified and received money, the money which is outlined on that summary you received that money as well as other payments showing on that and you then signed it as being true and correct, didn't you?

A. No.

Q. Do you recall from Christine's evidence that when she completed her original summary she did not insert $390 as a credit card payment, do you recall that?

A. No.

Q. Do you recall Christine saying that her original banking rollover summary was not in fact, it did not look like this?

A. I do not know.

Q. I put to you that when Christine gave you her original summary you disposed of that original summary and you created this new summary which is P1; this is the summary that you have before you, what do you say to that?

A. I deny that statement.

Q. Peter do you confirm receiving $390 from Christine after her shift?

A. That is correct, cash was transferred to me, a receipt was also given to me. I saw the receipt that the payment was by cash there was no visa card written on it.

Q. I put to you that when Christine gave you this cash $390 Samoa tala, I put to you that you kept this cash and in turn you then processed a credit card payment as a cover for that $390 Samoan tala, what do you say to that Peter?

A. I deny that statement.

Q. Peter you forged this document?

A. No.

Q. What if I put to you that you forged this document so that you can cover up for the $390 Samoan tala cash that you had taken from your shift?

A. No.

Q. Peter you processed a credit card transaction of $390 Samoan tala during your shift didn't you?

A. I deny that statement.

21. From the above evidence given by the accused under cross-examination, it is clear that, contrary to the evidence given by CP (Christine Passi), the accused denies having completed or having forged the BRS that was produced in evidence by the prosecution as the BRS that was completed by CP could not be found. The above evidence also shows that the accused, contrary to the evidence given by CP that the accused did verify the BRS that she completed at the end of her morning shift on 28 July 2006, denies that he did verify that BRS. In addition, the above evidence also shows that the accused denies having used the $390 in cash that was given to him by CP contrary to the evidence given by the witness Alosio Lafaele that during his internal investigation within the hotel of this matter, the accused did admit to him that he (the accused) used that money. Furthermore, the accused denies that he processed a credit card transaction during his shift on 28 July 2006 which is contrary to what appears in the BRS that was produced in evidence which suggests that such a transaction was processed by the accused during his shift.

22 At this point of the cross examination of the accused by counsel for the prosecution, I asked the accused as to what he means by what he says in his statement given to the police that the witness CE came to the hotel and said to him to note the $390 cash payment as a credit card payment and he obeyed. The accused confirmed that CE came and instructed him to fill in the form which is Exhibit p1, the BRS that was produced by the prosecution. He then filled out that BRS. So here the accused admits to having filled out that BRS even though under cross examination by counsel for the prosecution he denies having completed or having forged that BRS.

23. When counsel for the prosecution resumed her cross examination of the accused, the following were some of questions asked by counsel and the answers given by the accused:

17. At the bottom of that eftpos receipt Peter, you should be able to see the time 1603, do you see that?
1. Correct
   
17. That was during your shift, wasn't it?
1. Correct
   
17. And you were the only one working on that day during that shift, weren't you?
1. Correct
   
17. But the receipt that you have before you of $390 was processed during your shift, wasn't it?
1. Correct
   
17. And you processed that credit card transaction, didn't you?
1. I did not process the visa card
   
17. You were the only person who worked that shift, didn't you?
1. Correct
   
17. Isn't it correct that you took the $390 cash and when you took the cash you processed the credit card payment so that you can cover up for the cash that you had taken, isn't that correct?
1. Your Honour the statement that I took the $390 is wrong.
   
17. But you did receive the cash, didn't you?
1. Correct your Honour but I put it where the cash is, I did not take that money.
   
17. But you did receive the $390 Samoan tala from Christine, didn't you Peter?
1. Yes Your Honour the $390 cash was given to me at the time the cash was transferred to my shift.
   

24. From the above evidence, it appears that the copy of the eftpos receipt returned by the ANZ bank to the hotel shows that the amount of $390 was charged to the credit card number of the hotel guest EB on 28 July 2006 during the accused's shift that day which was the evening shift. However, the accused denies that he took $390 cash during his shift on 28 July 2006 and processed a credit card payment to cover up for the $390 he is alleged to have taken. According to the accused's evidence, it was the witness CE who came to the hotel and instructed him to fill in another BRS and to note the cash payment of $390 as a credit card payment. However, he did not take any money.
    
25. CE was called as a witness by the prosecution. It is clear from CE's evidence that she was working at the front desk of the hotel when the guest EB was staying at the hotel until she checked out on 27 July 2006. At no time during CE's evidence in chief did she say she was the employee to whom EB had paid her hotel account when EB checked out. In fact CE testified during her evidence in chief that she cannot recall having any dealings with EB in respect of payment. The following question was put to CE by counsel for the prosecution and CE's answer:
    
    17. Just in terms of payments, do you recall having any dealings with the same guest (EB) in respect of payment?

A. No.

26. Under cross examination by counsel for the accused, CE, however, recalled that it was she to whom EB had paid her hotel account when EB checked out of the hotel on 27 August 2006 and that the payment was made by a visa credit card. The following were the relevant questions asked by counsel for the accused and the answers given by CE:
    
    17. Catherine you have been very clear in your evidence. You seem to recall everything quite clearly back in 2006. My learned friend has asked you about EB and you're sure that you didn't receive any kind of payment from EB. I ask you again, did you receive any kind of payment from EB with regards to her account.
    1. Any kind of payment?
       
    17. Did you process any payment for EB in regards to her account?
    1. Correct. The payment I processed in respect of EB's account was on the day that she checked out, and that was recorded in the folio.
       
    17. And you were the one who received that payment?
    1. Correct
       
    17. What is the date again of that payment?
    1. That would have been the .....
       

Court. 27 of July?

17. Now you processed the payment on 27 July for EB and do you recall whether she used a credit card or cash?
1. On the folio it can be seen whether it was cash or credit card but I do recall that the payment was made by credit card.
   
17. And a receipt would be generated by your eftpos machine as she will have to sign the receipt.
1. Correct
   
17. But apart from that receipt and apart from the credit card of EB there's no other record of her signature, correct?
1. Correct
   
17. On the 28th July and 29th July, whoever processed these other payments to EB's account they wouldn't have had the card because EB would have left by then, is that correct?
1. Can you repeat please?
   
17. When EB left on the 27th did she take her card?
1. Correct
   
17. And so you would have been the only one who would have handled her card, you were the one that processed the payment before she left, is that correct?
1. Correct
   
17. And you would be the only one who saw the signature on her card, is on the back of her card, is that correct?
1. Correct
   
17. So really, the persons who would have been working the following day, they didn't see EB's signature, is that correct?

A. The person whose shift followed my shift on the same day could have seen the signature because there is not only one shift a day. There are three shifts then the whole day is complete. On the day in question I worked in the morning. For sure there was a person that followed. That person could have seen the signature as well as the night auditors. They are the ones who could have seen EB's signature. They could also have accessed the record of her account number on her card...

27. In re-examination, CE said that on 27 July 2006, the person who worked in the evening shift following her shift in the morning was the accused. So in terms of CE's evidence, the accused who worked in the evening shift and the night auditors who worked in the night shift that followed could have accessed the eftpos receipt which shows EB's signature and credit card number. As earlier pointed out, at the end of the night shift at 7am the following morning all the money and any eftpos receipts collected during the morning, evening, and night shifts are given to the manager of the hotel for banking. So at the end of the day there should be no record of any guest's credit card number or signature at the front desk where the hotel guests pay their accounts unless a front desk employee who had access to a guest's credit card or eftpos receipt had noted the credit card number and the guest's signature somewhere.
    
28. In the caution statement that the accused made to police corporal Malama Fauoo on 12 September 2006, the accused told the police officer as follows:
    

"I do recall very clearly the 28/7/2006 I was working in the afternoon starting at 3pm, and on that day Catherine was off. But about 5pm she came not in uniform.

She came that day and opened the cupboard where the money is kept. She then pulled out the document in which the money of our shift is recorded (cash receipt sale) and had a look at it. She then instructed me to fill in another form for the cash count saying to note the $390 as a visa card payment. I obeyed as she is the one who supervises me. However, I knew quite well that that $390 was a cash payment because when we did our handover with Christine it was a cash payment. At that time, I saw Catherine punching (omiomi) the eftpos machine without using a credit card. After that she pulled up the money inside the handbag she had with her and as I saw it, she was exchanging some money with our cash.

However, I am now seeing the documents that I filled out and signed and I do confirm that it was myself who 'forced' the signature of Christine because of the instruction by Catherine. The original that was completed by Christine was also taken by Catherine and I do not know where that is."

29. The accused in his oral testimony was quite forgetful and sometimes appeared to be ignorant but when what is said in his statement given to the police was put to him he confirmed that that was what happened. There were also several inconsistencies and contradictions in the answers given by the accused under cross examination by counsel for the prosecution. However, the accused would return to what is said in his police statement, when that was put to him, and said that is what happened.
    
30. If the accused's evidence contains inconsistencies and contradictions, the evidence given by CE was no different. The manager of the hotel testified that the hotel has a policy in place that an employee who has completed his or her shift is not allowed to return to the hotel after his or her shift until his next shift. CE in her evidence confirmed there was such a hotel policy unless the security gives permission to an employee to return to the hotel after his or her shift. She further denied in her evidence in chief that there was any time when she returned to the hotel after her shift which was always the morning shift.
    
31. The following questions were put during examination in chief by counsel for the prosecution and the answers given by CE on this issue:
    
    17. You mentioned previously that once you leave the premises after your shift you cannot return. Was there ever a time when you finished your shift and then you returned back to the hotel after?

A. No.

Q. Is there a hotel policy?

A. Correct, there is a specific policy by the hotel on every employee.

Court: And what was that policy?

A. If you work in the shift from 7 to 3:30, at 3:30 you leave the hotel and you cannot return to the hotel unless you are given permission by the security or those on duty at the gate. And you have to leave the hotel at your knock-off time.

Q. There may also be allegations that there were times that you would go to the hotel during his (Peter's) shift. You would instruct Peter to give you cash and in return for that you would substitute these cash payments with credit card transactions. What is your response to that proposition if such evidence were to come to light?

A. I deny it.

Q. Do you recall going to work after your morning shift?

A. No.

Q. Would there be any reason for you to return to the hotel at any time in the evening after your morning shift?

A. There was no time when it was possible for me to return to the hotel after my shift or working time.

32. However, under cross examination by counsel for the accused, CE said that there was one occasion when she returned to the hotel. The following questions were put by counsel for the accused to CE and the answers given by CE:
    
    17. You told the Court and you've told the Court today, you're quite clear in your evidence that at no time did you return to the Insel Fehrman Hotel after your shift, is that correct?

A. Correct

Q. I'll ask you again in cross examination, do you still maintain this, that you don't return back at all, ever?

A. At work? Your Honour, except one day to exchange my New Zealand money when we returned from, now I remember Your Honour, we returned from the airport about after 4pm, we came with my parents and my children and went to the hotel and requested the security for permission. That enabled me to change my money at the front desk. I remember Your Honour that Peter was there. The senior lady Lucy and the porter Herman were all there at the time I changed my money. That was the only day that I can remember that it was possible to return to the hotel but some other day prior to that, no your Honour.

Q. Catherine you seem like a very competent and reliable person. You remember everything quite clear. How can you not remember this yesterday when you were asked quite extensively by my learned friend, how can you not remember that just a few minutes ago?

A. It is about four years since I ceased employment with Insel. However, when I read my real statement again, I am able to remember again as on that day we went to see off my sister to go to NZ and she gave NZ$50 to my mother. It was also on that day when we returned as I knew the Insel's rate is higher. No bank was also opened on that day. For that reason, we went to the Insel and requested an opportunity to exchange our money. I remember that day very clearly, we returned to the hotel.

Q. During that evening on 28 July 2006 you returned later to work to exchange your NZ money, what do you say to that?

A. I deny that statement.

Q. What was the date that you returned to the hotel after your working hour?

A. Your Honour I do not remember but it was in the late afternoon that I returned to the office.

Court. You do not remember the date?

A. I remember very clearly the late afternoon that we returned to the office and exchange my NZ$50.

Q. But you confirm it was during Peter's shift?

A. Correct

Q. But was it sometimes in July, do you recall?

A. No Your Honour, as I was off that day to look after my baby, I had a baby at that time.

33. As it has also been pointed out in paras 25 and 26 of this judgment, CE during her evidence in chief never said that she was the hotel front desk employee to whom EB had paid her account when EB checked out of the hotel on 27 July 2006. In fact when CE was specifically asked by counsel for the prosecution durng examination in chief whether she recalled having any dealings with EB in respect of payment, CE replied no. However, when CE was pressed by counsel for the accused during cross –examination whether she had processed any payment for EB in regards to her account, CE admitted that she was the one to whom EB had paid her account by visa card on 27 July 2006. So CE would have been aware of EB's credit number and signature on the eftpos receipt that was given to EB and the eftpos receipt that was kept by the hotel.
    
34. CE also admitted during cross-examination that she has a previous conviction for theft as a servant which arose from the time she was employed by one of the banks and she had served a term of fourteen months imprisonment commencing from 1 March 2004. In consequence, counsel for the accused has submitted that CE's previous conviction is of such a nature as to tend to further weaken confidence in her trustworthiness as a witness of truth.
    
35. It is also clear from the evidence of the accused and that of CE, that the accused was not very confident in the performance of his work as a front desk employee at the hotel. Thus he would often call CE on the phone at her home for advice or direction. In other words, from the evidence of CE and that of the accused, the accused does not seem to have been that competent an employee at the hotel's front desk. Catherine, on the other hand, seems to have been quite competent in the use of the eftpos machine and in processing credit card payments.
    

Discussion

36. As the evidence shows, the guest EB who had stayed at the hotel checked out on 27 July 2006 and paid for her account by credit card which was a visa card. EB paid her account to CE who was on duty at the front desk during the morning shift on 27 July 2006. CE then issued a receipt from the hotel's receipt book to EB. CE also took EB's credit card and swiped it in the eftpos machine which generated two receipts. Both receipts showed EB's credit card number. In accordance with the normal procedures for a credit card payment made by a hotel guest, EB signed on the back of both receipts. CE then gave one eftpos receipt to EB and kept the other eftpos receipt at the front desk.
    
37. Even though it is not explicit from the evidence, the evidence does suggest, that in accordance with normal procedures, CE must have posted the credit card payment she received from EB in the Temporary Cash Receipt Listing (TCRL) together with all the other payments she had received at the front desk during her morning shift on 27 July 2006. CE must also have filled out the necessary Banking Rollover Summary (BRS) which must be completed by the end of her shift for verification by the accused who was to take over the next shift on 27 July 2006. The receipt book, the TCRL, the BRS and the money received by CE during her shift together with any eftpos receipts must then have been handed over by CE to the accused. At the end of the accused's evening shift at 11:30pm, he must have handed over the receipt book, TCRL, BRS and all the money he had collected together with any eftpos receipts he had received from CE's shift and during his own shift to the night auditors who took over from him for the night shift. At the end of the right shift at 7:30am the following morning, the night auditors must have handed over all the money and any eftpos receipts they had received during their shift and from the accused at the end of his shift to the hotel manager for banking.
    
38. On 28 July 2006, the day after EB checked out of the hotel, another guest Lisa Toleafoa (LT) also checked out of the hotel. This guest had prepaid the sum of $390 in cash before she checked in to the hotel for two nights accommodation. When LT checked out on 28 July 2006, CP (Catherine Passi) was on duty at the front desk during the morning shift. CE was off-work that day. CP then issued LT a receipt for $390 from the receipt book and ticked the box beside the word "cash" to show that LT's account was paid by cash.
    
39. Later on during her morning shift, CP filled out the TCRL for her shift which showed the cash payment of $390 from LT and she also wrote in the word "Prepaid" to show that LT had paid for her account before she checked in to the hotel. However, when the same TCRL was located during the investigations into this matter, it shows that someone had written in the word "visa" next to the word "Prepaid". CP in her evidence denied that she had written in the word "visa", however, she could not recognise whose handwriting did it.
    
40. Towards the end of her shift, CP filled out and completed the necessary BRS. In that BRS, CP again entered the payment of $390 made by LT as a cash payment. The BRS was then handed over to the accused, who was to work in the following shift, to verify. After the accused had verified the BRS, CP signed at the bottom of the BRS next to the words "Prepared and counted by" and the accused signed next to the words "Verified and Received by".
    
41. Sometime in August 2006, the hotel received a notification letter from its banker, the ANZ bank, informing the hotel that the guest EB had disputed the amount of $390 charged to her credit card on 28 July 2006. The investigation by the hotel's acting accountant which followed revealed that someone had written the word "visa" next to the word "Prepaid" in the TCRL completed by CP for her morning shift on 28 July 2006 where she had entered the payment made by the guest LT as a cash payment. The eftpos receipt returned by the bank to the hotel shows that the credit card payment charged to EB's credit card was made at 4:30pm which was during the accused's evening shift on 28 July 2006. That investigation also could not discover the BRS that CP had completed but a different BRS purported to have been completed by a different person for CP's shift. This new BRS was produced at the trial.
    
42. Under prolonged cross-examination by counsel for the prosecution, the accused denied having filled out the new BRS. At times he was forgetful, inconsistent, or contradictory. He also denied having taken the $390 cash paid by the guest LT and processing a credit card payment charged to EB to cover up for the $390 cash he is alleged to have stolen. It was only when the accused was questioned by the Court that he said he confirms what is said in his police statement about what happened during his shift. What was said by the accused in his police statement is that on 28 July 2006, CE, who was off work that day, came to the hotel at about 5pm and pulled out the document in which the money was recorded and had a look at it. Presumably, this was a BRS. CE then instructed him to fill in another form for the "cash count" to show that the cash payment of $390 was made by a visa credit card. The accused obeyed as CE is the one who supervises him even though he knew that the $390 was a cash payment because when he did his "handover" with CP it was a cash payment. The accused then says that he saw Catherine (CE) punching (omiomi) the eftpos machine without using a credit card. After that he saw CE pulling up (laga) the money inside her handbag and was exchanging money with the hotel's cash. The accused also says in his police statement that he filled outa new BRS form as instructed by CE and forged the signature of CP. The original BRS was taken by CE and he does not know where that is. In terms of this part of the accused's evidence, the clear inference is that it was CE who took the $390.
    
43. Overall, the accused's evidence was unsatisfactory. His evidence in which he denied that he used the $390 is also directly opposed to his oral admission to the hotel's acting accountant during the internal investigation that it was him (the accused) who used the money. However, if the accused's evidence was unsatisfactory, CE's evidence was no different.
    
44. CE's evidence was also inconsistent or contradictory. During examination in chief, CE repeatedly denied that she ever went back to the hotel after any of her shifts. However, when pressed under cross-examination by counsel for the accused, CE suddenly remembered that there was one day when she was off-work that she went back to the hotel to change NZ$50. CE was adamant that that day was not 28 July 2006, however, she could not remember when that date was. She could only remember that it was not 28 July 2006. Likewise, during examination in chief CE never said that she received any credit card payment from EB and even expressly denied remembering any dealings with EB in respect of payments. However, when CE was pressed under cross-examination by counsel for the accused, she admitted that it was her who received the credit card payment from EB on 27 July 2006 when EB checked out of the hotel. CE's previous conviction in 2004 for theft as a servant tends to further weaken confidence in her credibility as a witness.
    
45. As a result of the evidence given by the accused and CE respectively, I am left with a reasonable doubt as to whether the $390 with which the accused has been charged was stolen by the accused or CE. It is understandable that both of them were terminated by the hotel. Accordingly, information s445/06 which is the subject of charge 1 is dismissed.
    

Charge 2

46. It is alleged in information s442/06 which is the subject of charge 2 that on 29 July 2006 whilst the accused was employed by the Insel Fehrman Hotel, he did steal $282.73 in money which was the property of his employer. The case for the prosecution proceeded on the basis that the accused dishonestly or fraudulently took the sum of $282.73 from his employer for his own use and tried to cover it up by processing a payment using the credit card details of the guest Elizabeth Blair (EB) who had checked out of the hotel on 27 July 2006. The defence for the accused proceeded on the basis that the accused did not take the money or at least there is a reasonable doubt whether he did.
    
47. Charge 2 against the accused arose from circumstances similar to those in relation to charge 1. The guest EB who had stayed at the hotel checked out on 27 July 2006. She paid for her account using a visa credit card to the witness Catherine Esau (CE) who was on duty during the morning shift at the hotel's front desk. CE processed the credit card payment. In accordance with normal procedures, CE must have swiped the credit card in the eftpos machine which generated two receipts. These receipts must have shown EB's credit card number and EB must have signed on both receipts and witnessed by CE. One receipt must then have been given by CE to EB and CE must have kept the other receipt for the hotel's banking the following day. EB's credit card was given back to her. In these circumstances, CE must have seen EB's credit card number, if not from the credit card itself then from the receipt that she kept for the hotel's banking the following day. CE must also have seen EB's signature on the same receipt that she kept.
    
48. On 29 July 2006, a guest Kamilla Lui Yuen (KLY) who had stayed at the hotel for one night checked out. She paid for her account of $282.73 by cash to CE who was on duty during the morning shift at the hotel's front desk.
    
49. Towards the end of August 2006, the hotel received a notification letter from the ANZ bank that the guest EB had disputed the amount of $282.73 charged by the hotel to her credit card on 29 July 2006. The eftpos receipt which was attached to the notification letter from the ANZ bank shows that EB's credit card had been charged with $282.73 at 8:16pm on 29 July 2006 which was during the accused's evening shift on that day. Evidently, EB could not have incurred such a charge on 29 July 2006 because she had left the hotel on 27 July 2006. What appears to have happened is that the amount of $282.73 for the account by the guest KLY had been charged to EB's credit card by someone at the hotel. The question which arises is who at the hotel did this and what had happened to the $282.73 cash which KLY had paid to CE for her account on 29 July 2006 whilst CE was on duty at the hotel's front desk during the morning shift. Given that the eftpos receipt from the ANZ bank shows that the payment charged to EB's credit card was made during the accused's evening shift on 29 July 2006, the accused became the prime suspect.
    
50. To prove charge 2 against the accused, the prosecution relied primarily on the evidence of the witness CE to whom KLY had paid $282.73 cash for her account. CE in her evidence said that she issued a receipt from the receipt book for KLY's cash payment but KLY refused to take the receipt. I find it somewhat unusual for a hotel guest not to take a receipt issued to her for a payment she makes. This receipt, however, could not be found and none was produced during the trial.
    
51. In accordance with normal procedures for the issuing of a receipt, the front desk employee who receives a payment from a guest must prepare a receipt for that payment and must sign on the receipt. Such employee must then put a "tick" in the box beside the word "cash", "check" or "money order" on the receipt to show how the payment was made. CE, according to her own evidence, did nothing of those things in respect of the receipt she says she had issued to KLY even though they were basic requirements.
    
52. In her evidence, CE said that after she issued a receipt to KLY, she then prepared a TCRL in which she recorded the payment from KLY as a cash payment. That TCRL was produced in evidence by the prosecution. CE also said that towards the end of her morning shift on 29 July 2006 she prepared a "rough". As it appears from CE's evidence, what she means by a "rough" is a rough BRS with rough calculations made by her on it. CE further said that after she prepared the rough BRS, the accused who was to take over the next shift, which was the evening shift, arrived at the front desk. She and the accused then counted and verified her cash on the rough BRS and when everything was balanced, she then signed a blank BRS next to the words "Prepared and counted by" and asked the accused to fill in the blank BRS from the rough BRS she had prepared. The excuse given by CE for not filling the blank BRS herself is that at that time the hotel was strictly enforcing a policy that an employee must leave the hotel at the time his/her shift ends. So she had to leave the hotel at the end of her shift at 3:30pm that day. I find CE's excuse for not completing the new BRS very suspect. If it is true that the hotel was strictly enforcing a policy that an employee must leave the hotel at the end of his or her shift, she had a good enough excuse for staying on after her morning shift on 29 July 2009. That reason was to complete her BRS. It would also not have taken long to copy from her rough BRS to the new and blank BRS which she signed. Furthermore, if CE was aware of the newly enforced policy, she never explained why she did not make sure that she had a proper BRS completed before the end of her shift instead of simply signing a blank BRS at the end of her shift leaving it to the accused to fill it in. In any event, CE said that at the end of her shift she handed over the receipt book, her TCRL, her rough BRS, the blank BRS she had signed, as well as the cash and eftpos receipts collected during her shift to the accused who took over from her for the evening shift. The rough BRS which CE said she prepared could not be found and none was produced in evidence. So not only is the receipt that CE said she issued to KLY but KLY refused to take could not be found and therefore could not be produced in evidence, but so is the rough BRS which CE said she had prepared.
    
53. As the evidence shows, the blank BRS which CE signed and handed over to the accused was filled out and completed by the accused when it should have been filled out by CE. This BRS shows the total payments which were made by visa credit cards during CE's morning shift as $6,634. The accused then signed next to the words "Verified and Received by" below CE's signature next to the words "Prepared and counted by". This document is misleading for two reasons. Firstly, any person reading this BRS would get the impression that it was prepared by CE when it actual fact she did not. Secondly, any person reading this BRS would get the impression that it was not the accused who prepared it when in actual fact it was him who filled it in.
    
54. Subsequently, the hotel received a notification letter from its banker, the ANZ bank, that the guest EB who had stayed at the hotel had disputed the payment of $282.73 charged to her credit card. This is exactly the same as the amount of $282.73 which CE said the guest KLY had paid to her on 29 July 2006. Attached to the notification letter from the ANZ bank is a copy of the eftpos receipt showing the amount of $282.73, EB's credit card number, and EB's signature. There was no dispute that EB's signature on this eftpos receipt is a forgery. But who committed this forgery is unknown. The eftpos receipt also shows that EB's credit card was charged with the payment of $282.73 at 8:16pm on 29 July 2006 which was during the accused's evening shift.
    
55. At this point, I have to say that I find CE's evidence inconsistent, contradictory and very suspect. In relation to the receipt which CE said she had issued to KLY but KLY refused to take, CE during examination in chief never said that she had correctly filled out or signed the receipt she had issued to KLY. It was only in response to a question from the Court that she said she did fill in that receipt and put a "tick" next to the word "cash". This was to show that the payment made by KLY was by cash.
    

Court: When you fill out a receipt do you note in it whether the payment was made by cash or credit card?

A: Correct, on the receipt are columns for credit card, master card or cash. You can put a tick in the cash column. That was done on KLY's receipt.

56. However, under cross-examination by counsel for the accused, the following questions were asked by counsel and the answers given by CE:
    

Q: Now you received this cash of $282.73, is that correct?

A: Correct

Q: You stated yesterday that you did not issue a receipt to Kamilla, is that correct?

A: I gave a receipt to Kamilla but she did not accept it.

Q: And do you recall whether you filled out that receipt correctly?

A: Correct

Q: When you filled out this receipt, did you note down the mode of payment whether it is cash or credit card?

A: Correct, it should be filled outwhether it is a cash payment or credit card

Q: Did you sign the receipt?

A: Correct

Q: Do you agree with me that these are basic skills you used at the front desk?

A: Correct

Q: Something that everyone should know especially a senior employee like you?

A: Correct your Honour

Q: And yet on that day, the receipt that you did not issue to Kamilla and which remained in the receipt book, you did not note down whether it was cash, right?

A: From what I remember your Honour I filled outthe receipt but I don't really remember whether I ticked "cash" or "credit card" but I know for sure it was a cash payment.

Q Well I put it to you that the only thing you put on the receipt is the amount of money received, you did not sign it and you did not indicate whether it was cash, what do you say to that?

A: Your Honour, in carrying out my job, every requirement must be carried out; the whole receipt must be filled out in the amount must be noted down, the name of the guest, the room number, my signature, and the mode of payment whether it is cash or credit card.

57. The last two answers given above by CE to questions from defence counsel are rather ambiguous. They do not admit or deny that CE did not sign the receipt she issued to KLY or tick the box beside the word "cash" on the receipt to indicate that the payment by KLY was by cash. Apparently, CE was not being frank even though defence counsel had explicitly put to her that she did not sign the receipt she claims to have issued to KLY and that she did not tick "cash" to indicate that the payment by KLY was by cash.
    
58. Counsel for the accused then followed up in her cross-examination by referring CE to her written statement given to the police on 15 September 2006 where she told the police that she did not sign the receipt she gave to KLY or tick the box beside the word "cash" to indicate the mode of payment. It was then that CE said that she had made an "honest mistake". At the same time CE agreed to the suggestion from defence counsel that what she was required to do involved a very simple procedure that an experienced employee like herself would be expected to know. Whether what CE failed to do was an "honest mistake" or not, I must say I have serious reservations about her credibility. This is not just because of her evidence in relation to charge 2, but also because of her evidence in relation to charge 1.
    
59. The evidence by the accused in relation to charge 2 came out primarily during cross-examination of the accused by counsel for the prosecution. I must say that if the evidence by the witness CE in relation to charge 2 was inconsistent, contradictory and unsatisfactory, the evidence by the accused was no different.
    
60. Under cross-examination, the accused could not remember whether he was working on 29 July 2006 during the evening shift. He only remembered when he was shown the BRS dated 29 July 2006 with his signature on it. At one time during cross-examination, the accused also appeared to be saying that he received the $282.73 cash from CE together with CE's BRS at the end of her morning shift on 29 July 2006 but later on he repeatedly said that he could not remember whether CE gave her such cash. The accused also could not remember whether anyone else was working with him on 29 July 2006 during the evening shift.
    
61. The accused, however, seems to remember that he did not take the $282.73 with which he has been charged for stealing. He also remembers that he did not process any credit card transaction using EB's credit card number and signature to cover up for any $282.73 he is alleged to have stolen. He repeatedly denied that he did such a thing. However, the accused maintained under cross-examination, as he had said during examination in chief, that there were times when he was working alone during his shift that CE would come to the hotel's front desk open the till and handle the cash but he could not do anything as CE was senior to him. The evidence given by CE and the accused himself also show that the accused was not a confident or sufficiently competent employee in the performance of his front desk duties, including the processing of credit card payments by guests of the hotel, and that often he would call CE on the phone at her home for advice and directions.
    

Discussion

62. The case by the prosecution in relation to charge 2 depends on the evidence by the witness CE and the eftpos receipt from the ANZ bank which shows that the credit card of the guest EB had been charged with a payment of $282.73 during the accused's evening shift on 29 July 2006 even though EB had checked out of the hotel on 27 July 2006. It is clear from the evidence that when EB checked out of the hotel, she paid for her account by credit card to CE who was then on duty at the front desk during the morning shift on 27 July 2006. On 28 July 2006, a guest Lisa Toleafoa checked out of the hotel and paid for her account of $390 by cash. Towards the end of August 2006, the hotel received a notification letter from the ANZ bank that EB had disputed the payment of $390 charged to her credit card. The eftpos receipt for that payment shows that the credit card payment was processed during the accused's evening shift on 28 July 2006. That payment is the subject of charge 1 against the accused and I have already dealt with it.
    
63. Then on 29 July 2006 the guest Kamilla Lui Yuen (KLY) checked out of the hotel and paid for her account of $282.73 by cash to CE who was on duty during the morning shift at the front desk. Towards the end of August 2006, the hotel received written notification from the ANZ bank that the guest EB had disputed a payment of $282.73 charged to her credit card. The eftpos receipt for that payment shows that the payment was processed during the accused's evening shift on 29 July 2006.
    
64. As I have said, I find the evidence given by CE very suspect that I have serious reservations about her credibility. But it is CE's evidence upon which the case for the prosecution primarily relies in relation to charge 2. The only other evidence that tends to connect the accused to the alleged theft of $282.73 is the eftpos receipt from the bank. The accused repeatedly denied having processed any credit card payment as alleged against him and said that sometimes during his shifts CE would come to the hotel front desk open the till and handle the money. However, the accused said he did not report CE to the management of the hotel. I must say that I was not impressed with this part of the accused's evidence. Perhaps, it is no surprise that the hotel has terminated the employment of both CE and the accused. But that has not answered the question I have to deal with of whether the prosecution has proved charge 2 beyond reasonable doubt.
    
65. In all the circumstances, I am not satisfied that charge 2 against the accused has been proved beyond reasonable doubt. I am not satisfied with the necessary degree of confidence that it was the accused who stole the money with which he has been charged. That charge is therefore dismissed.
    

Charges 3

66. The third charge alleges that the accused on 4 August 2006 did steal $1,146.10 in money which was the property of his employer the Insel Fehrman Hotel. Like charge 1 and charge 2, charge 3 also involved an amount that is alleged to have been dishonestly charged to the credit card of Elizabeth Blair (EB).
    
67. A notification letter received by the hotel from the ANZ bank informed the hotel that EB had disputed the amount of $1,146.10 which had been charged by someone at the hotel to her credit card. The relevant eftpos receipt shows that the transaction was processed on 4 August 2006 at 11:10pm which was during the accused's evening shift. Naturally, the accused became the prime suspect.
    
68. The Temporary Cash Receipt Listing (TCRL) which was prepared by the accused during his evening shift on 4 August 2006 was produced in evidence by the prosecution. It shows that a payment of $1,146.10 was made by a hotel guest named Watson using a credit card. A receipt number 13784 is shown to have been issued for that payment. However, that receipt could not be produced. The Banking Rollover Summary (BRS) that the accused had filled out for his evening shift on 4 August 2006 suggest that the type of credit card used by Watson was a visa card. All of this must be false because the notification letter from the bank shows that the payment of $1,146.10 was charged to EB's credit card and not to any credit card of Watson.
    
69. In the caution statement given by the accused to the police on 12 September 2006, he told the police:
    

"It was the same on 4 August 2006, I was on duty but Catherine (CE) was off. She came that evening at about 5pm and checked my cash again. On that evening she came and said she had come to pay her bonus. There was then a guest named Watson who came to pay his account while Catherine was there. That guest paid for his account of $1,146 by cash in front of myself and this girl (Catherine). I then wrote out a receipt which I confirm as receipt 13784 but Catherine then said not to fill in the space next to cash in the receipt. When the guest left, she (Catherine) gave me a piece of paper and said that I write the words visa card on the copy of the receipt. She then punched (omiomi) the eftpos machine at that time and put the whole money inside her small purse she had brought with her. I knew very well that what Catherine was doing is not right but I did not say anything to her. This girl Catherine usually calls me on the phone (vili atu) and tells me about her 'fa'alavelaves'. I did not get any money from the money that she took".

70. CE in her evidence did not directly rebut what the accused says in his caution statement of 12 September 2006. What she said during examination in chief and under cross-examination was that she never returned to the hotel after her shifts. It was only after prolonged questioning under cross-examination by defence counsel, and after her previous inconsistent given to the police was drawn to her attention, that she admitted that she had returned to the hotel on one occasion to change a NZ$50.
    

Discussion

71. I have already expressed serious reservations about CE's credibility for reasons given in relation to charges 1 and 2. I have also not been impressed with the accused and his evidence. However, the evidence in relation to charge 3 has again left me in the position where I have to decide between the evidence of CE and that of the accused both of which are very suspect. After careful consideration, I am left with a reasonable doubt whether it was CE or the accused who stole the money with which the accused has been charged.
    
72. Accordingly, charge 3 is also dismissed as it has not been proved beyond reasonable doubt.
    

Charge 4

73. Under the fourth charge, it is alleged that on 5 August 2006 the accused did steal $44 in money which was the property of his employer the Insel Fehrman Hotel. Like charges 1, 2 and 3, charge 4 also involved an amount of money that is alleged to have been dishonestly charged to the credit card of a guest who had stayed at the hotel.
    
74. The evidence by the prosecution shows that the hotel received a notification letter dated 16 September 2006 from the ANZ bank informing the hotel that one of its former guests named Nakajima (N) had disputed a payment of $44 which had been charged by someone at the hotel to his credit chard. The relevant eftpos receipt shows that on 5 August 2006 at 6:25pm someone at the hotel charged a payment of $44 to N's credit card. The time shown on the eftpos receipt was during the accused's evening shift from 3:30pm to 11:30pm on 5 August 2006.
    
75. The documentary evidence produced by the prosecution included the Temporary Cash Receipt Listing (TCRL) and the Banking Rollover Summary (BRS) which were prepared by the accused during his evening shift on 5 August 2006. The TCRL shows that a payment of $44 was made by Samoa Tel staff for the use of the hotel's tennis court. That is the only payment of $44 shown in this TCRL. There is a column in the TCRL to show how the payment was made, that is, whether it was by cash, cheque, or credit card. The "tick" in that column next to the payment by Samoa Tel suggest that the payment was made by cash. However, the word "c/card" is also written next to the "tick" which suggests that the payment was made by credit card. The TCRL also shows that a receipt number 13799 was issued for that payment. However, the prosecution could not produce that receipt.
    
76. The BSR prepared by the accused during his evening shift on 5 August 2006 shows that the total amount collected by the accused for credit card payments made during that shift was $1,490.90. This BRS also shows that the receipts issued during the accused's shift were from numbers 13785 to 14001 which would include receipt 13799 noted in the TCRL. The notification letter dated 16 September 2006 which the hotel received from the ANZ bank together with the relevant eftpos receipt informed the hotel that its former guest N had disputed the payment of $44 charged to his credit card on 5 August 2006 at 6:25pm. N was no longer staying at the hotel by 5 August 2006.
    
77. The contention by the prosecution is that the Samoa Tel staff who used the hotel's tennis court had paid for it by cash but the accused had noted that payment in the TCRL as a credit card payment and charged it to N's credit card. The total amount of $1,490 shown in the BSR for credit card payments collected by the accused during his evening shift on 5 August 2006 must have included the false credit card payment of $44 shown in the TCRL.
    
78. According to the evidence of the prosecution witness Alosio Lafaele, who was the hotel's acting accountant at the time of the investigation of this matter, the fee that the hotel charges per person to outsiders for the use of its tennis court is $4. The staff of Samoa Tel who used the tennis court were outsiders and not guests of the hotel. The hotel would not allow an outsider to pay for such a small amount by credit card. Payment has to be by cash. The witness Alosio Lafaele also said that Mr Nakajima (N) whose credit card had been charged with the payment of $44 was a Japanese who came to Yazaki (Samoa) Ltd and was not a member of Samoa Tel's staff.
    
79. The subject matter of charge 4 was not put to the accused during examination in chief by his counsel. Under cross-examination by counsel for the prosecution, the accused again showed forgetfulness and lack of recollection of events which in my view borders on being evasive. The following were the relevant questions asked by counsel for the prosecution and the answers given by the accused:
    
    17. 'Peter you were working on 5 August 2006, weren't you?
    1. I do not remember

...

17. Peter you were working on 4 August 2006, weren't you
1. I do not remember
   
17. May the witness be shown exhibit P19, the Banking Rollover Summary of 5 August 2006 and this is for the evening shift. Peter if you look at the very bottom of that document, that's your signature next to the words "Prepared and counted by" isn't it?
1. Correct
   
17. And it shows that you had signed on 5 August at approximately 11:30pm?
1. Correct
   
17. So you were working that night weren't you?

A Yes

Q. And during your shift on that same day, you received a cash payment of $44 from Samoa Tel staff, didn't you?

Q. I don't remember

A. May the witness be shown exhibit P18, the Temporary Cash Receipt Listing of 5 August 2008. Peter if you can just look at the third to last line which starts with the [receipt] number 13799 and it's for the amount of $44, that was a payment that was received during your shift, wasn't it?

A I do not remember

17. But you can see that entry is recorded during your shift, entries from your shift, can you not see that?
    

A. Your Honour, that is so, it was recorded during my shift

Q. Your Honour, may the witness be shown exhibit P22, eftpos receipt for the same date, at the bottom next to the date, you also see the time 18:25, you were working at that time, weren't you?

A. That is so

Q. You can also see that the signature that's on the eftpos receipt, its in Chinese do you see that

A. Yes

Q. And if you look at the Temporary Cash Receipt Listing, the payment was supposed to be for Samoa Tel staff yet on the eftpos receipt it appears that it is a Chinese guest that owns the credit card payment, would you agree?

A. Yes I do

Q. Alosio also gave evidence that this credit card belongs to a guest by the name of Mr. Nakajima. Do you recall the evidence of Alosio in which he said that?

A. No

Q. Well that's what Alosio gave in his evidence. He also said that Mr Nakajima is from Yazaki Company, do you recall at least that?

A. No

...

17. Also with this $44 as you can also see that it was for Samoa Tel's staff for the use of the tennis court, do you agree with me?
1. I do
   
17. Samoa Tel's staff as well as other people that do not stay at the hotel, they are able to use the tennis court at the hotel, aren't they?
1. I do not know
   
17. But if you look at the document in front of you that is what it shows?
1. That is so
   
17. Peter I put to you that on this day 5 August 2006 Samoa Tel's staff came to the hotel, they used the tennis court and they paid you $44 in cash, isn't that what happened?
1. I do not know.
   
17. But if you look at that document in front of you, that's what it shows, doesn't it?
1. That is so
   
17. I also put to you Peter that with this $44, you kept that $44 cash, what do you say to that?

A. I strongly deny that accusation

17. And then once you kept that $44 cash you then used the credit card of Mr Nakajima to cover up for that cash and you used this credit card to pay off the $44, isn't that what happened Peter?
1. Your Honour I deny that statement
   

80. It would appear from the above answers given by the accused under cross-examination that he is forgetful and rather ignorant of certain matters put to him by counsel for the prosecution. However, in the two caution statements that the accused gave to the police, especially the first caution statement dated 21 September 2006, the accused in the answers he gave to detailed questioning by the police investigating officer seems to have a good recollection of events including the dates he was at work in relation to charges 1, 2 and 3. In the second caution statement dated 30 October 2006, which is in relation to charges 4 to 8, the accused briefly denied the allegations against him and refused to make another statement to the police.
    
81. Even though parts of the evidence by the accused and the witness CE show that the accused would often call CE on the phone at home for advice and direction on how to do his job, other parts of the evidence of the accused and CE show that the accused had been provided with training on how to do his job including the processing of credit card transactions. So the accused was not really ignorant of how to do his job including the processing of credit card transactions.
    
82. CE in her evidence said that when she joined the accused at the hotel's font desk toward the end of March 2006 the accused had already been given training in his job by another senior member of the staff. CE also said that she provided training to the accused on how to carry out his front desk duties when the accused consulted her on the phone at her home. The accused in his evidence in chief said that different people trained him at the front desk. There was a hotel staff member named "Bella" who provided the initial training for him at the front desk until CE jointed the staff at the front desk. Most of the training were concerned with how to process payments, filling out receipts when a guest makes a cash payment, and how to do the posting on the folio. However, the accused says he made many errors. This is very different from what appears in the accused's caution statement of 21 September 2006 where the following questions were asked by the police investigating officer and the answers given by the accused.
    
    17. How long have you been working at the Insel?
    1. It is now nine months, I started in January
       
    17. What is allowed in the payment of accounts by the guests?
    1. The system that is used there are visa card, master card, American Express, Diners Card, cash and cheques.
       
    17. Do you understand how to do your work and the use of cards?
    1. Yes, I understand it very well
       
83. It would appear that there is a lot of difference between what the accused is now saying in his oral testimony and what he said to the police investigating officer on 21 September 2006.
    

Discussion

84. Insofar as charge 4 is concerned, the evidence shows that only the accused was involved. There is no evidence to show that any other staff member of the hotel was involved. The TCRL prepared by the accused during his evening shift on 5 August 2006 shows that the accused had purportedly issued a receipt number 13799 for a cash payment of $44 made by Samoa Tel staff for the use of the hotel's tennis court. The payment is not only ticked to suggest that it was a cash payment but the words "c/card" are written in to suggest that it was a credit card payment. The notation in the TCRL for this payment is therefore ambiguous and confusing.
    
85. The evidence of the witness Alosio shows that strangers are not allowed to pay for the use of the hotel's tennis court with credit cards. The fee for the use of the tennis court per person is $4 and payments by strangers are normally with cash.
    
86. The BRS prepared by the accused during his evening shift on 5 August 2006 shows that the receipts issued during that shift were from numbers 13785 to 14001 which would include receipt number 13799 shown on the TCRL as the receipt issued for the payment of $44 by the staff of Samoa Tel. There is no other payment of $44 shown on this TCRL. The notification letter dated 16 September 2006 from the ANZ bank and the relevant eftpos receipt show that a payment of $44 had been charged to the credit card of N who was a guest of the hotel but had left the hotel before 5 August 2006. That credit card transaction is shown to have been processed at 6:25pm on 5 August 2006 which was during the accused's evening shift that day. So the evidence points strongly to the accused as the only person who processed that credit card transaction and charged the amount of $44 to N's credit card. The only reasonable inference to be drawn from this is that the accused took the cash payment of $44 made by the Samoa Tel staff for the use of the tennis court and processed a credit card transaction using the credit card details of N to cover up for the money that he took. There can be no other reasonable explanation for the accused charging the amount of $44 to N's credit card.
    
87. Counsel for the accused submitted that there was evidence from the accused that the witness CE used to come to the hotel's front desk during the accused's shifts and handle the cash in the till. This was a very general assertion made by the accused when he was questioned in relation to the amounts which were charged to the credit card of EB which forms the subject matters of charges 1 to 3. In relation to the present charge, the accused in his evidence in chief, in his two caution statements, and in his evidence given under prolonged cross-examination, never said that during his shift on 5 August 2006 CE returned to the hotel's front desk and handled any money. I was also far from being impressed with the accused's evidence given under cross-examination. His evidence in general thus not generate confidence in his credibility or reliability as a witness.
    
88. I also do not believe that the accused was so uncomfortable and lacking in confidence in the performance of his front desk duties, as the defence seems to suggest, that he did not know how to process a credit card transaction at all either manually by punching a guest's credit card number into the eftpos machine where the guest is not in possession of his credit card or by swiping the credit card in the eftpos machine where the guest is in possession of his credit card. As the evidence of the witness CE and the accused himself show, the accused had been provided with training on how to perform his duties at the front desk commencing from about March 2006. This matter occurred on 5 August 2006. So the accused had had 5 months to learn and become experienced in processing credit cards transaction. I also cannot see what is so difficult about processing a credit card transaction by simply swiping a credit card in an eftpos machine or punching the credit card number into the eftpos machine. In fact in his caution statement of 21 September 2001, the accused, in response to questions from the police investigating officer, said that he understands very well how to do his work as well as the use of credit cards.
    
89. All in all then, I am satisfied that the prosecution has proved charge 4 beyond reasonable doubt.
    

Charge 5

90. The fifth charge alleges that on 6 August 2006 the accused did steal $32 in money which was the property of his employer the Insel Fehrman Hotel. As with charge 4, charge 5 involved the alleged dishonest charging of a sum of money to the credit card of Nakajima who had been a guest at the hotel.
    
91. Here again the hotel received a separate notification letter dated 16 September 2006 from the ANZ bank informing the hotel that its former guest Nakajima (N) had disputed a payment of $32 charged by someone at the hotel to his credit card. The relevant eftpos receipt shows that on 6 August 2006 at 6:19pm the amount of $32 was charged to N's credit card. That was during the accused's evening shift on 6 August 2006. The evidence also shows that N was no longer staying at the hotel on 6 August 2006.
    
92. Apart from the notification letter from the ANZ bank and the relevant eftpos receipt, the documentary evidence produced by the prosecution also included the relevant receipt from the hotel's receipt book, TCRL, BRS, and the accused's two caution statements given to the police. The relevant receipt which is receipt 14009 shows that that receipt was issued by the accused on 6 August 2006 in respect of a payment of $32 received from the staff of Samoa Tel for the use of the hotel's tennis court. The signature on the receipt shows the name of the accused. In the column which shows the mode of payment, there is a tick in the box next to the word "cash". The words "visa card" are then written over that tick.
    
93. The relevant TCRL dated 6 August 2006 shows that a receipt number 14009 was issued to "SamoaTel o/Guest" in respect of a payment of $32 for the use of the hotel's tennis court. A signature with the name of the accused then appears next to this notation in the column headed "Posted". The evidence given by the prosecution witness Alosio Lafaele shows that on the basis of the documentary evidence, the relevant entry in this TCRL was written by the accused.
    
94. The relevant BRS which is dated 6 August 2006 shows that the receipts which were issued from the receipt book during the evening shift on that day were from numbers 14002 to 14010. This would include receipt 14009 issued in respect of the payment of $32 made by the SamoaTel staff. The total amount of payments made by visa cards as shown in the BSR is $1,938.15. It is the contention of the prosecution that this total amount included the amount of $32 charged by the accused to the credit card of N. The accused then signed at the bottom of the BSR next to the words "Prepared and counted by".
    
95. As with charge 4, the subject matter of charge 5 was not put to the accused during examination in chief by his counsel. Under cross-examination by counsel for the prosecution, the accused again showed forgetfulness and lack of recollection of events in his oral testimony. This was typical of the accused's oral testimony throughout his evidence. The following were the relevant questions by counsel for the prosecution and the answers given by the accused:
    
    17. Peter you were working at the hotel on 6 August 2006, weren't you?
    1. I do not know
       
    17. Your Honour may the witness please be shown exhibit P24, Banking Rollover Summary for 6 August 2006; that signature belongs to you, doesn't it?
    1. That is so
       
    17. And the signature was done on 5 August 2006 at 11pm?
    1. Your Honour that is so.
       
    17. So you were working that evening shift, weren't you Peter?
    1. Your Honour that is so
       
    17. During your evening shift Peter, again SamoaTel staff came during your shift to use the tennis court, do u recall that? Peter I put to you on this day SamoaTel staff did come to the hotel during your shift and you served them, when you served them they paid $32 cash, what do you say to that?
    1. Your Honour I do not know
       
    17. Your Honour may the witness please be shown exhibit P25, the reeipt book which contains a receipt number 14009 which I will be referring to
        

...

17. If you look at the very top of that receipt which is dated 6 August 2006 that shows that you received the payment from SamoaTel, doesn't it?
1. That is so
   
17. And it was for the use of the tennis court, wasn't it?
1. Your Honour that is so
   
17. And that is your signature at the bottom of the receipt, isn't it Peter?
1. That is so
   
17. And if you look underneath where it says "how paid", the box which says "cash", you've marked next to that box.
    

Court: Do you have an answer Peter or not?

1. Your Honour I do not remember whether I filled out this receipt
   
17. You don't remember writing the receipt but that is your signature, isn't it Peter?
1. That is so your Honour
   

...

17. Alosio and Christine in their evidence mentioned that when you fill out receipts just in terms of method of payment, you have either cash, cheque or credit card; both witnesses said that when a guest pays by visa card this is recorded next to the box "cheque", do you recall that?
1. Your Honour I do not know.
   
17. Peter if you don't know or if you don't remember Alosio or Catherine saying that during their evidence, surely you must know after working at the hotel for about nine months if a guest pays by visa, isn't it correct to say that you mark the cheque box?
1. Your Honour I do not know
   
17. You do not know such a practice at the hotel?
1. Your Honour that is so
   
17. Peter as you can see by that receipt, the cheque box has not been marked, it is the cash box?
1. Your Honour that is so
   
17. But if you look at the cash box it says the words "visa card", but if you also look closely just underneath the word "visa" there appears to be a tick or what looks like a tick, do you see that?
1. Your Honour I do not know
   
17. I'm asking you if you can see that?
1. Your Honour no
   
17. I put to you that staff of SamoaTel paid $32 in cash in which you then issued the receipt and in which you ticked the cash box, what do you say to that?
1. Your Honour I do not remember
   
17. And I also put to you that after you received that $32 cash, you then processed a visa payment and you charged that receipt so that it shows not cash but a visa card payment was made?
1. Your Honour I deny that statement
   

...

17. Peter I put to you that you processed this eftpos receipt or this credit card transaction to cover up for the $32 that you received from SamoaTel and that you had kept the money for yourself, isn't that correct?
1. I deny that statement
   
17. But you processed that credit card transaction didn't you?
1. Your Honour I did not point out the receipt
   
17. But you were the one that issued the receipt to SamoaTel, weren't you?
1. Your Honour it is correct that my signature is written on this receipt.
   
17. And you were the only one working that shift, weren't you?

A. I do not remember if it was only me.

96. I find that the answers given by the accused under cross-examination do not generate any confidence at all in this credibility. I find his apparent forgetfulness and failure to see certain things put to him unbelievable. I must say that my impression of the accused is that he was pretending to be weak in intellect and dumb in order to avoid the truth. Evidence was produced by the defence to show that the accused did not pass his course certificate examinations. But there is no evidence to show why the accused failed his examinations. I also disbelieve the accused's denials that he did not process a credit card transaction using the credit card details of N who was a guest at the hotel to cover up for the $32 paid by the SamoaTel staff who used the hotel's tennis court. The documentary evidence strongly shows that he did. The only reasonable inference to be drawn in the circumstances is that the accused took that money. I see no other reasonable or realistic explanation for the accused's actions in processing a false credit card transaction. He would not have taken such trouble and risk dismissal from his job, if it was not to cover up for the money that he had unlawfully taken.
    
97. If reference is made to the two caution statements given by the accused to the police, especially the caution statement dated 21 September 2006, the accused told the police that he understands his duties very well. The accused also appears from his caution statements, especially the one of 21 September 2006, to have had a very good recollection of events under extensive and detailed questioning by the police. The forgetfulness of the accused under cross-examination is unbelievable.
98. I also repeat in relation to charge 5 the reasons I gave in relation to charge 4 for rejecting the accused's evidence in relation to that charge.
    
99. All in all then, I conclude that the prosecution has proved charge 5 beyond reasonable doubt.
    

Charge 6

100. The sixth charge alleges that on 4 September 2006 the accused did steal $1,000 in money which was the property of his employer the Insel Fehrman Hotel.
     
101. The documentary evidence produced by the prosecution shows that on 6 September 2006, the hotel received a notification letter from the ANZ bank informing the hotel that its former guest named Samson (S) had complained about an amount of $1,000 charged to his credit card by someone at the hotel. Three eftpos receipts were also produced. The first eftpos receipt shows that on 4 September 2006 at 21:29 or 9:29pm an amount of $1,000 was charged to the credit card of S. The second eftpos receipt shows that on 4 September 2006 at 21:31 or 9:31pm an amount of $32.40 was charged to the credit card of S. So the time difference between those two eftpos receipts was only two seconds. The third eftpos receipt shows that on 4 September 2006 at 22:27 or 10:27pm an amount of $180 was charged to the credit card of S. So the time difference between the first and second receipts and the third receipt was almost one hour. There was no complaint about the second and the third eftpos receipts. So S must have accepted the payments in those two receipts. The complaint by S was made only against the amount of $1,000 in the first receipt which he denied having incurred as an expense. The times shown in the three eftpos receipts also show that all three receipts had been processed during the evening shift on 4 September 2006. The evening shift at the hotel's front desk was normally worked by the accused.
     
102. The relevant receipt book which was also produced by the prosecution shows that two receipts, numbers 14416 and 14417, had been issued to S on 4 September 2006. Receipt number 14416 shows a payment of $32.40 was made on 4 September 2006 for phone calls by S using a visa card. The signature on this receipt appears to be that of the accused and was confirmed by the prosecution witness Alosio Lafaele as that of the accused. Receipt number 14417 shows that a payment of $180 was made on 4 September 2006 for one night's stay at the hotel by S using a master card. The signature on this receipt also appears to be that of the accused and was confirmed by the witness Alosio Lafaele as that of the accused. There is nothing in the receipt book to show that any other receipt was issued to S, that is to say, there is no receipt for any payment of $1,000, made by credit card or otherwise, received by the hotel from S.
     
103. It is clear from receipts 14416 and 14417 that the two payments in those receipts were made by S to the accused on 4 September 2006. The relevant eftpos receipts show that the times those payments were made were during the evening shift on 4 September 2006. So the accused must have worked on the evening shift on 4 September 2006.
     
104. The TCRL which was evidently prepared by the accused for his evening shift on 4 September 2006 was also produced by the prosecution. It shows only two credit card transactions in the name of S for $32.40 and $180. These are the same two transactions shown in receipt numbers 14416 and 14417 in the receipt book. The TCRL does not show any credit card transaction in the name of S for $1,000. If there was such a transaction, then according to the evidence of the witness Alosio Lafaele and the accused himself, such transaction should have been shown in the TCRL. The fact that no such transaction appears in the TCRL clearly implies that there was no such transaction even though the amount of $1,000 had been charged to the credit card of S.
     
105. Two BSRs were also produced by the prosecution. The writings on the first BSR show that that BSR was for the morning shift on 4 September 2006. According to the evidence of the witness Alosio Lafaele, the signature which appears at the bottom of this TCRL next to the words "Prepared and counted by" is that of the witness CE which suggests that CE had worked the morning shift on 4 September 2006. The signature next to the words "Verified and Received by" is that of the accused. Except for the signature that appears to be that of CE, the witness Alosio Lafaele testified that he is familiar with the accused's handwriting and the handwriting that filled out this BSR is that of the accused. This looks very suspicious because the BSR for the morning shift on 4 September 2006 should have been filled out by CE who was on duty during that shift and not by the accused who was on duty in the evening shift. All that the accused was required to do was to verify the BSR for the morning shift which CE should have filled out.
     
106. The first BSR also shows that the total of the master card payments received by the hotel during the morning shift was $1,313.50 and the total of the visa card payments received by the hotel during the same shift was $753.15. So the total credit card payments received by the hotel for the morning shift on 4 September 2006 was $2,066.65. However, if one refers back to the TCRL for 4 September 2006, as explained by the witness Alosio Lafaele, the two credit card payments which the hotel received during the morning shift were for $753.15 and $313.50. This would total $1,066.65 which is $1,000 less than the total of $2,066.65 for the credit card payments shown in the BSR for the morning shift. In other words the total payments of $753.15 received by the hotel by way of visa card payments is correct because there is a credit card payment for that amount shown in the TCRL. However, the total payment of $1,313.50 received by the hotel by way of master card payments as shown in the BSR cannot be reconciled with the TCRL because the only other credit card payment shown in the TCRL for the morning shift on 4 September 2006 is for $313.50. This is, of course, $1,000 less than the total amount of $1,131.50 as shown in the BSR. This difference of $1,000 is the same as the amount charged to S's credit card which S had disputed. As already mentioned, the witness Alosio Lafaele testified that the handwriting which filled out the BSR is that of the accused because he is familiar with the accused's handwriting.
     
107. The writings on the second of the two BSR's shows that that BSR was for the night shift on 4 September 2006. At the bottom of this BSR next to the words "Prepared and counted by" appears the signature of the accused and the time shown when the accused signed this BSR is 11:30pm. This shows that this BSR was filled out by the accused. It also shows that this BSR was for the accused's evening shift from 3:30pm to 11:30pm and not the night shift as it is written at the top of this BSR. The total payments shown in the second BSR as received by the hotel by way of master card payments is $1,525.90 and the total for visa card payments is $753.15 thus making a total of $2,279.05. As already mentioned, the amount of $753.15 for the total visa card payments is correct because the TCRL shows that the hotel received a credit card payment of $753.15 during the morning shift on 4 September 2006. However the total of $1,525.90 for master card payments is incorrect. What appears to have been done is that the total of the two credit card payments of $32.40 and $180 received by the accused from S during the evening shift, which would have been $212.40, had been added to the total of $1,313.50 shown in the first BSR for master card payments received by the hotel, thus making a total of $1,525.90. In other words the total of $1,525.90 appears to have been made up as follows: the credit card payment for $313.50 shown in the TCRL has been added together with the amount of $212.40 being the total of the two credit card payments by S thus making a total of $525.90. To that total was added $1,000 which is unaccounted for in the TCRL thus making a total of $1,525.90 which is the total shown in the second BSR for master card payments received by the hotel. So the amount of $1,000 which is unaccounted for in the TCRL had been included in the total for master card payments shown in the first and the second BSR making it difficult for the hotel to detect the discrepancy until the notification letter from the bank informing the hotel that S had complained about a payment of $1,000 that was charged to his credit card.
     
108. The second caution statement which was given by the accused to the police on 30 October 2006 contains a blanket denial of charges 4 to 8 which includes the present charge. The subject matter of the present charge was not put to the accused during examination in chief by his counsel. Under cross-examination by counsel for the prosecution, the accused again displayed forgetfulness which sometimes borders on evasiveness. These are some of the questions asked by counsel for the prosecution and the answers given by the accused:
     
     17. Peter you were working on 4 September 2006, weren't you?
     1. Your Honour I do not remember
        
     17. May the witness please be shown exhibit P31, the Banking Rollover Summary for 4 September 2006.
         

...

17. Peter if you look at the very bottom of that document which says "Verified and Received by", that is your signature at the bottom isn't it?

A. Your Honour my signature is incomplete here.

109. It is true that the accused's signature at the very bottom of the BSR which is exhibit P31 is not wholly shown but it would appear that is because of the way exhibit P31 was photocopied. But what appears at the very bottom of exhibit P31 shows that the signature is clearly that of the accused. The cross-examination then continued as follows:
     
     17. May the witness be shown exhibit P33, a Banking Rollover Summary
         

...

17. At the bottom where it says "Prepared and counted by", Peter that is your signature, isn't it?
1. Your Honour no.
   
17. But it has your name next to it though, doesn't it Peter?
1. Your Honour correct, the name, but this is not my signature
   

...

17. And do you agree that although you claim that is not your signature, it's printed Peter, isn't it?
1. Your Honour that is so
   
17. During this period there was only one Peter working at the hotel, just yourself, wasn't it?
1. There were two Peters, myself at the front desk and the other Peter at the restaurant
   
17. But do you agree with me when I say there was only one Peter at the front desk?
1. Your Honour that is so
   
17. And that Peter was yourself, wasn't it?
1. That is so
   
17. So you must have been working the evening shift on 4 September 2006?
1. Your Honour it is difficult to remember, it is now four years since I cease to work there.
   
17. So you say that it was some four years ago, so you may not remember, but there is a possibility that you did work just by looking at that document, isn't there?
1. Your Honour that is so
   
17. Peter during this evening shift a guest by the name of Samson came to the front desk and he made a couple of payments, do you recall that?
1. Your Honour I do not know
   
17. May the witness please be shown exhibit P28, Temporary Cash Receipt Listing of 4 September 2006, just on the first page Peter, if I can just direct your attention to the last two entries, the first one being 14416 and 14417, it shows that Samson made two payments and these two payments were made during your shift, isn't that correct?
1. Your Honour that is so.
   
17. And you were the only one working that shift, weren't you?
1. Your Honour I do not remember.
   
17. May the witness be shown exhibit P35, the eftpos receipt for the same date 4 September 2006. There are three eftpos receipts in front of you. First direct your attention to the first one which says $32.40 and the second... which is for $180, do you see those two receipts?

A. Your Honour that is so

Q. These two receipts were processed during your shift on 4 September 2006, weren't they?

A. What time was that

Q. These two times being 21:31 or 9:31pm and 22:27 which is 10:27pm. These two receipts were processed during your shift?

A. Your Honour that is so.

Q. And these two receipts are reflected in your Temporary Cash Receipt Listing, aren't they?

A. Your Honour that is so.

Q. If you also look at the middle eftpos receipt for $1,000 this was processed at 21:29 or 9:29pm, this credit card transaction was processed during your shift, wasn't it Peter?

A. Your Honour that is so

Q. And if you look at the Temporary Cash Receipt Listing, this $1,000 is not shown in your recording isn't it?

A. Your Honour that is so

Q. And Peter if this has been a genuine transaction, this should have been reflected in your Temporary Cash Receipt Listing, shouldn't it?

A. Your Honour that is so.

Q. Alosio had given evidence that the card holder, the owner of this credit card had complained to the hotel regarding this $1,000 payment, it was an additional payment, a payment that was not accounted for, do you remember Alosio giving that evidence?

A. Your Honour I do not remember

Q. Well that's what Alosio said in his evidence. I put to you Peter that's just how you did on previous occasions; you took $1,000 cash and to cover up for that cash, you processed this credit card transaction so that it would cover up for the missing cash, what do you say to that?

A. Your Honour I deny that statement.

Discussion

110. When the prosecution produced the three eftpos receipts and the notification letter from the bank which are related to charge 6, I thought there might have been an error here. This is because of the time difference of two seconds between the first eftpos receipt which shows that the amount of $1,000 had been charged to S's credit card and the second eftpos receipt which shows $32.40. This time difference suggests that the second eftpos receipts was processed immediately after the first eftpos receipt. It is likely that S was present at the hotel's front desk when the two receipts were generated from the eftpos machine. It is therefore somewhat difficult to imagine the first eftpos receipt being fraudulently processed whilst S was present.
     
111. However, having considered the evidence of the relevant TCRL and the two BSRs, and the evident concealment of the amount of $1,000 in those documents, I am satisfied that the first eftpos receipt was not an error but a deliberate act by the accused. In addition, if the first eftpos receipt was an error, that error should have been rectified right then and there whilst S was present. To leave the first eftpos receipt as it is until it was picked up by S and he lodged a complaint with the bank, suggests that it was not an error.
     
112. For much the same reasons that I have given in relation to charge 5 for disbelieving the accused's evidence and for concluding that charge 5 has been proved beyond reasonable doubt, I also disbelieve the accused's evidence in relation to charge 6 and find this charge proved beyond reasonable doubt. I find the accused's forgetfulness and occasional ignorance under cross-examination unbelievable. I also disbelieve the accused's denials under cross-examination, in particular his denial that he did not take $1,000 cash which belonged to his employer and then processed a credit card transaction using the credit card details of S to cover up for it. The evidence, particularly the documentary evidence, points overwhelmingly at the accused having processed a credit card transaction in which the amount of $1,000 was charged to the credit card of S and that he tried to conceal that amount in the relevant BSRs by inflating the total amount received from master card payments by adding on $1,000. There is no evidence to show that any other member of the hotel staff was involved. The general assertion by the accused in relation to charges 1 to 3 that CE would sometimes come to the hotel's front desk during his shifts and handled the money in the till is too vague to contradict the clear documentary evidence which points overwhelmingly at him.
     
113. The only reasonable and realistic explanation for the accused's actions is that he must have taken $1,000 cash from his employer and then tried to cover up for it by inflating the total amount for master card payments in the BSRs. The accused would not have gone through such trouble and risk dismissal by his employer if it was not to cover up for money he had unlawfully taken from his employer. Perhaps I should point out here that if reference is made to the TCRL related to charge 6, it would show that the total cash received, after deducting credit card payments, which was handed over to the accused at the end of morning shift on 4 September 2006 was $3,215.42.
     
114. All in all then, I find charge 6 to have been proved beyond reasonable doubt.
     

Charge 7

115. The seventh charge alleges that on 9 September 2006 the accused did steal $612.46 in money being the property of his employer the Insel Fehrman Hotel. Unlike each of charges 1 to 6, where the hotel received a notification letter from the ANZ bank that a former guest of the hotel had disputed a payment charged to his or her credit card, charge 7 does not involve a complaint from a former guest of the hotel but an alteration which was discovered to have been made to the voucher for the credit card payment made by a former guest of the hotel. What had happened here was that when the hotel received notification letters from the ANZ bank concerning complaints from its former guests EB, N and S that their respective credit cards had been charged with payments they did not authorise, the hotel carried out an intensive internal investigation. It was in the course of that investigation that the receipt or voucher that was issued for a credit card payment by another former guest by the name of Rowan Barnsley (RB) was discovered and that the amount in that voucher had clearly been altered by someone from $816.56 to $1,429.02. It is that voucher which is the subject of charge 7.
     
116. The essence of charge 7, and of the evidence adduced by the prosecution to prove that charge, is that during the morning shift on 9 September 2006, a guest named Sifa Benjamin checked out of the hotel and paid for his account of $612.46 by cash. Later on during the same shift, another guest Rowan Barnsley checked out of the hotel and paid for his account of $816.56 by visa card. During the internal investigation carried out by the hotel following the notification letters from the ANZ bank, it was discovered that the voucher which the hotel had issued to Rowan Barnsley (RB) for $816.56 had clearly been altered by someone to $1,429.02. The difference between the two amounts is $612.46 which is the same as the amount of $612.46 that the guest Sifa Benjamin had paid for his account. In the circumstances that were revealed from the investigation, it was concluded that the accused must have taken that money. That is why the accused is charged with theft of $612.46.
     
117. The witness Christine Passi (CP) testified that she and a girl named Julie Tafaoialii (JT) were both on duty at the hotel's front desk during the morning shift on 9 September 2006. This was after CP had earlier testified that she was on duty at the front desk by herself. CP said that at the morning shift on 9 September 2006 she was providing training for JT on how to perform the duties at the front desk. During that shift, the hotel guest RB checked out at the front desk and paid for his account of $816.56 with a visa card. This payment, according to CP, was made to her. At that time the power went off so that the electronic eftpos machine which is normally used for processing credit card payments could not be operated. As a result, the "manual system" which requires no power for its operation had to be used. Like the eftpos machine, the manual system generates two receipts or vouchers, one for the guest and one to be kept by the hotel.
     
118. CP further testified that she wrote on each of the two vouchers generated by the manual system the amount of $816.56 and RB signed on both vouchers. JT then filled out receipt 14503 from the receipt book in the name of RB for the amount of $816.56 and signed on the receipt. CP said that JT filled out the receipt as part of the training she was providing for JT and because she was busy with other matters. However, she was present whilst JT filled out the receipt. CP also said that after the receipt was filled out, it was handed over by herself and JT to RB.
     
119. Written on the receipt which was handed to RB are the words "M/card" which suggests that the payment by RB was made with a master card. But as CP testified, the payment made by RB to her was made by visa card which is clear from the face of the voucher that was generated from the manual system. CP said that this must have been a mistake by JT as the payment made by RB was by visa card and not by master card. Whether this was in fact a mistake or a deliberate act by JT who was not called as a witness by the prosecution, there is no evidence that RB complained about the amount on the receipt that was handed to him. This would suggest that the amount on the receipt that was given to RB correctly represented the amount of the payment he made.
     
120. When the prosecution sought to produce receipt 14503 as an exhibit for the prosecution, defence counsel objected to its admissibility because of the indication from the prosecution that JT will not be called by the prosecution as a witness. According to CP during her evidence in chief, JT is no longer employed at the hotel and she does not know where JT is now. However, under cross-examination by defence counsel CP said that JT had returned to America where she came from. It would therefore seem that the objection by the defence to the admissibility of receipt 14503 is based on the hearsay rule. I allowed the prosecution to produce receipt 14503 but reserved my reasons. I give these reasons now.
     
121. It seems to me that underlying the objection by defence counsel to the admissibility of receipt 14503 are two important evidential distinctions. The law sometimes makes a distinction between what is direct evidence and what is circumstantial evidence and sometimes it makes a distinction between what is direct evidence and what is hearsay evidence. These distinctions are explained in Cross on Evidence (1997) 6th NZ ed by DL Mathieson where the learned author states in p.11 at para 1.24:
     

"Circumstantial evidence is usually contrasted with 'direct evidence.' 'Direct evidence' has two meanings. In its first sense 'direct evidence' is contrasted with hearsay, and may therefore be defined as an assertion made by a witness in Court offered as proof of the truth of any fact asserted by the witness, including the witness's own mental or physical state at a given time. In its second sense, 'direct evidence' means a witness's statement of perceiving a fact in issue with one of the five senses, or of being in a particular mental or physical state. In this second sense the contrast is with circumstantial evidence. When someone swears to have seen an alleged murderer carrying a bloodstained knife, the evidence is direct in the first sense, but not in the second."

122. There is no dispute that the receipt which is the subject of the objection by defence counsel is relevant. The evidence by CP of what she knew and saw JT doing in her presence, namely, filling out receipt 14503 for the payment by RB of his account would be direct evidence and not hearsay. This is because it is evidence given by CP as an eye witness of what she knew and saw being done by JT. As direct evidence, it is admissible as proof of what was seen by CP. The evidence of the receipt itself which CP saw JT filling out in her presence, as part of the training she was providing JT, and which both CP and JT handed to RB, would also be direct evidence and not hearsay. This is because this was not a receipt that was filled out in the absence of CP and was not seen by CP. CP was right there and then and she saw JT filling out the receipt. In effect, what CP was saying is that this is the receipt that I saw JT filled out in my presence for the payment by RB and which both JT and myself handed to RB. Such evidence would be direct evidence of the receipt which CP as an eye witness saw JT filled out. The receipt is therefore admissible as direct evidence of the document which CP saw being filled out by JT. It may be arguable that the inability of the prosecution to call JT as a witness may affect the weight to be given to the receipt. But even if that is so, that is different from the question of admissibility. It is for those reasons that I decided to allow the prosecution to produce receipt 14503 as an exhibit for the prosecution.
     
123. Before RB checked out of the hotel and paid for his account at the front desk during the morning shift on 9 September 2006, another guest by the name of Sifa Benjamin (SB) had earlier checked out of the hotel during the same shift and paid for his account of $612.46 by cash at the front desk. According to the evidence of CP, SB paid for his account by cash to JT while she, CP, was present serving other guests. CP said she actually saw the cash paid by SB to JT. So CP must have seen SB paid for his account by cash to JT. CP further testified that JT then filled out a receipt and gave it to SB. This turned out to be receipt 14502. Defence counsel also objected to the admissibility of this receipt. Presumably, the ground for this objection is that because JT who issued the receipt was not to be called as a witness by the prosecution, the receipt must therefore be hearsay. I also allowed the prosecution to produce receipt 14503 as an exhibit but reserved my reasons. Those reasons are essentially the same as the reasons for my decision to allow the prosecution to produce receipt 14503 as an exhibit.
     
124. As CP testified, SB paid for his account by cash to JT while she, CP, was present at the front desk serving other guests. She also saw the actual cash paid by SB and JT issuing a receipt to SB for that payment. So CP must have seen what happened. CP's evidence of what she saw must be direct evidence by an eye witness. Being direct evidence, it is therefore not hearsay. The fact that it turned out later that the receipt book shows that it was receipt 14502 that was issued in the name of SB for the amount of $612.46 and signed by JT would lead to the logical and reasonable inference that that must be the duplicate of the receipt which CP saw JT issued to SB as there is no other receipt shown in the receipt book to have been issued to SB. This inference would be circumstantial evidence which is admissible. It is again not hearsay. Receipt 14503 was therefore admissible.
     
125. However, there is something that needs to be noted about receipt 14502. The amount of $612.46 is written in the box next to the word "cash". Without more, that would be consistent with CP's evidence that the payment by SB to JT was by cash. But immediately next to the amount of $612.46 appear the letters "v/c" which is the abbreviation for visa card. This makes the notation in receipt 14502 with regard to the mode of payment ambiguous in spite of the evidence by CP that the payment by SB was made by cash. If it is true, as CP testified, that this payment was made by cash, then why do the letters "v/c" appear on the receipt immediately after the amount $612.46. This is very confusing. I find it difficult to believe that this was another mistake by JT. It is difficult to accept that in the same shift JT made two mistakes in respect of two consecutive receipts that she issued to two different guests of the hotel on matters that are so simple and straight forward, that is, if the evidence given by CP is correct. The first mistake, which was in relation to receipt 14502, is that JT wrote the amount $612.46 in the box next to the word "cash" and then next to that amount she wrote "v/c" when according to CP's evidence the payment was made by cash and not by credit card. The second mistake, which was in relation to receipt 14503, is that JT wrote on that receipt "M/card" when according to CP's evidence this payment was made by visa card. Furthermore, CP, herself, in her evidence in chief first said that she was on duty by herself at the front desk on 9 September 2006 but later she said she was on duty with JT whom she was training. CP also said in her evidence in chief that JT is no longer employed by the hotel and she does not know where JT is now. However, under cross-examination by defence counsel she said that JT had returned to America where she came from. All of this is unsatisfactory evidence.
     
126. To further compound the difficulties in relation to the receipts, when CP filled out the Temporary Cash Receipt Listing (TCRL) for her morning shift on 9 September 2006 from the duplicates in the receipt book of the receipts that were issued during that shift, she ticked "cash" next to the payment of $816.56 which would suggest that it was a cash payment. This is in spite of CP's own evidence that RB's payment that was made to her was made by visa card and also in spite of the fact that the words "M/card" and not "cash" appear on the face of the receipt which clearly shows that it was a credit card payment and not a cash payment. I find it difficult to accept CP's explanations that this was an honest mistake on her part because she was very busy. For CP to tick "cash" when she knew very well that the payment made by RB to her was by visa card is something that is not easy to accept.
     
127. In accordance with normal procedures, the next document to be filled out by an employee on duty for a particular shift at the front desk is the Banking Rollover Summary (BR) which is usually filled out towards the end of a shift. CP testified that towards the end of her morning shift on 9 September 2006, she prepared a rough BSR. When the accused who was to take over the evening shift arrived, she was still trying to balance out her rough BSR. CP's evidence was somewhat vague but she appeared to be saying that she and the accused then worked together in trying to complete the BSR for her shift. When that was done, it was well after knock-off time for her shift. CP said she the then handed over to the accused the rough BSR she had prepared as well as the cash etc that was collected during her shift. She also recalled that when the voucher for the visa card payment of $815.56 was handed over to the accused there was no alteration to that amount. CP said she then signed a blank BSR next to the words "Prepared and counted by" and the accused signed next to the words "Verified and Received by". She then gave this blank BSR to the accused to fill out from the rough BSR that she had prepared. This blank BSR was produced by the prosecution. It had been filled out by someone.
     
128. CP's evidence regarding this BSR is also very unsatisfactory. During CP's evidence in chief she said that it was the accused who filled out this BSR but later she said that she did not recognise whose handwriting is on the BSR. When the Court pointed out to CB the inconsistency in her evidence, CP said she had made a mistake but the handwriting on the BSR is that of the accused. Under cross-examination by defence counsel, CP was shown the TCRL and BSR that the accused had prepared for his evening shift on 9 September 2006. CP was then asked to compare the handwriting between the BSR she said the accused had filled out for her morning shift and the handwriting in the TCRL and BSR that the accused had filled out for his own evening shift. CP then agreed to the suggestion from defence counsel that the handwriting in the BSR she said the accused had filled out is different from the accused's handwriting in the TCRL and BSR that the accused had filled out for his own evening shift. This clearly suggests that it was not the accused who filled out the BSR that CP claims to have been filled out by the accused. In fact the witness Catherine Esau (CE) when she was asked by the Court about the BRS in question said she is familiar with the accused's handwriting and in her opinion the handwriting on the said BRS is not that of the accused.
     
129. The significance of this evidence regarding the BSR is that the BSR which CP said the accused had filled out shows a total amount of $8,059.50 for visa card payments which presumably would include the altered amount of $1,429.02 shown on the voucher for the visa card payment by RB. And CP had testified that when she handed over that voucher to the accused at the end of her shift the amount on the voucher was $816.56 and had not been altered to $1,429.02. The inference is that it must have been the accused who made the alteration and noted the total amount of $8,059.50 in the BSR given to him by CP to cover up for the alteration. However, there is no direct evidence that anyone saw the accused made the alteration. There is also no evidence that the handwriting which made the alteration is that of the accused. Apart from CP's own evidence, which I find to be very unsatisfactory, there is no other evidence to confirm that when CP handed over the voucher in question to the accused, the amount on the voucher had not been altered.
     
130. When the accused gave evidence and was cross-examined by counsel for the prosecution, he said that he could not remember whether CP gave him the voucher for the visa card payment made by RB. He then repeatedly denied that he altered the amount on the voucher or took the $612.46 with which he has been charged.
     

Discussion

131. The case for the prosecution relies primarily on the evidence of the witness CP which I have found very unsatisfactory. The accused in his evidence under cross-examination repeatedly denied that he altered the amount on the voucher which is at the core of the prosecution's case and the charge against him. He also repeatedly denied that he took the money with which he has been charged. In the circumstances, I have found it difficult to decide where the truth lies. There is a real doubt about the matter. I am therefore not satisfied that the prosecution has proved this charge beyond reasonable doubt.
     
132. Charge 7 is therefore dismissed.
     

Charge 8

133. The eighth charge alleges that on 10 September 2006 the accused did steal $122 in money being the property of his employer the Insel Fehrman Hotel. Like charge 7, the present charge did not arise from a notification letter from the ANZ bank informing the hotel about a complaint from a former guest of the hotel that a payment has been charged to his or her credit card without his or her authorisation. Charge 8, like charge 7, arose out of what was discovered during the internal investigation that was carried out by the hotel following the letters of notification from the ANZ bank about the complaints by EB, N and S concerning unauthorised charges to their respective credit cards.
     
134. The evidence adduced by the prosecution shows that the witness Catherine Esau (CE) was on duty at the hotel's front desk during the morning shift on 10 September 2006. CE testified that during her morning shift, a guest named Isaiah Hunkin (IH) paid for his phone calls by cash at the front desk. This cash payment consisted of US$40 equivalent to $104 and $122 making a total of $226.00 These two cash payments of US$40 and $122 were recorded separately in receipt 14515 in the receipt book which CE issued to IH. These two payments were then posted separately by CE in the Temporary Cash Receipt Listing (TCRL) that she prepared for her shift. Towards the end of CE's shift she prepared the usual Banking Rollover Summary (BRS) to record her collections during her morning shift. This BRS does not show any credit card payment received during the morning shift. CE said that all the payments she received during her shift were by cash. At the end of her shift when the accused arrived to take over for the evening shift, CE signed the BRS next to the words "Prepared and Counted by" and the accused signed next to the words "Verified and Received by". This suggests that the usual handover and verification process from one shift to the next was carried out. CE testified that she then handed over all her cash collections, receipts, TCRL and BRS to the accused.
     
135. The prosecution also adduced through the witness Alosio Lafaele two eftpos receipts discovered during the hotel's internal investigation. The first of these eftpos receipts shows that a credit card payment for $156 had been charged to a guest named Jackson (J) on 10 September 2006 at 22:16 or 10:16pm. The second of the eftpos receipts shows that a payment of $278.50 had been charged to the credit card of the same guest at 22:17 or 10:17pm. The time difference between the two eftpos receipts is one second. This suggests that IH's credit card must have been swiped twice in the eftpos machine. The times and dates on the two eftpos receipts suggest that those receipts were processed during the accused's evening shift.
     
136. The payment of $156 shown in the first eftpos receipt is traceable to receipt 14519 in the receipt book. That receipt shows that it was issued to the guest J on 10 September 2006 for phone calls and that the payment was made by visa card. The signature of the accused also appears on the receipt as the hotel employee who received the payment. The same payment is also traceable to the TCRL which was prepared and filled out by the accused for his evening shift on 10 September 2006. The TCRL shows that receipt 14519 was issued to the guest J for a visa card payment of $156 for phone calls. There is no other credit card payment shown in the TCRL for the accused's shift.
     
137. However, the payment of $278.50 shown in the second eftpos receipt cannot be traced to any receipt in the receipt book or to any transaction shown in the TCRL prepared by the accused during his evening shift. In other words, this second credit card transaction cannot be accounted for.
     
138. The difference in the amount of $156 in the first eftpos receipt and the amount of $278.50 in the second eftpos receipt is $122. This amount of $122 is traceable to receipt 14515 issued by CE to the guest IH during the evening shift as a cash payment. The same amount of $122 is also shown in the TCRL prepared and filled out by CE during her morning shift. From this circumstantial evidence, the prosecution has drawn the inference that the accused must have taken that amount of $122 and processed a credit card transaction for $278.50 using the credit card details of J to cover up for the money he had taken.
     
139. When the accused gave evidence and was cross-examined by counsel for the prosecution, he was, as usual, forgetful or ignorant or denying the allegations against him. He would either say I do not remember, or I do not know, or simply deny. I must say that I disbelieve the accused. I think the accused is pretending to be forgetful or ignorant to save himself.
     
140. The evidence given by the accused himself is that he started his employment with the hotel on 1 January 2006 as a telephone operator. After one or two months he was transferred to the front desk. That must have been mid-February or the beginning of March 2006. He was then provided with training on the duties carried out at the front desk including how to process credit card transactions. The witness CE also testified that when she joined the front desk towards the end of March 2006, the accused was already working there and he had already been given training by another employee of the hotel. CE also said that she, herself, provided training to the accused. From mid-February or the beginning of March 2006 to 10 September 2006 when the incident relating to charge 8 occurred, is about 6½ to 7 months. It is unbelievable that the accused would still not know how to process a credit card transaction by swiping a credit card in the eftpos machine by 10 September. I do not see what is so difficult about that. I cannot believe that after 6½ months or so the accused would still not know how to process a credit card transaction in spite of the training that had been given to him. What the accused told the police in his caution statement that he understands his work and the use of credit cards very well is much more believable.
     
141. The accused also said that often there is a shortage of $20 or $10 in his cash count and he would ask his parents for money to make up for the shortage. Whether that is true or not, $20 or $10 is much less than $122.
     
142. The evidence in relation to charge 8 is clear. The accused was on duty at the front desk during the evening shift on 10 September 2006. During that shift the guest J paid for his phones totaling $156 using a visa card. A receipt was filled out and issued by the accused for that payment. The receipt shows the signature of the accused on it. This shows that the visa card payment by J was made to the accused. The TCRL prepared and posted by the accused for his shift also shows that payment.
     
143. An eftpos receipt shows that the payment of $156 by J was made by credit card on 10 September 2006 at 22:16 or 10:16pm which was during the accused's evening shift. There is no evidence that anyone else was on duty with the accused during that shift. There is also no specific evidence that anyone came to the front desk during that shift and handled the money in the till. Then there is another eftpos receipt which shows a credit card payment for $278.50 supposed to have been made by J on 10 September 2006 at 22:17 or 10:17pm which was during the accused's evening shift. Given the time difference of one second between the two eftpos receipts, the inference must be that it was the same person who processed both receipts during the accused's evening shift. As there is no evidence that anyone else was working with the accused during that shift, the inference must be that it was the accused who processed both receipts. This is particularly more so because receipt 14519 that was issued to J for the payment of $156 contains the signature of the accused.
     
144. I accept the prosecution's contention that in the circumstances there can be no reasonable explanation for the accused's actions other then to use the credit card payment of $278.50 to cover up for the amount of $122 he had taken. There is the general assertion by the accused that CE would sometimes return to the hotel after her shifts and handled the cash at the till. However, there is no evidence in relation to the present charge to suggest that CE returned to the hotel during the accused's shift on 10 September 2006 and handled the cash in the till and then processed a credit card transaction to cover up for any money she took. In fact under extensive and detailed cross-examination of the accused by counsel for the prosecution, the accused never once said or suggested that CE returned to the hotel during his evening shift on 10 September 2006.
     
145. I find charge 8 to have been proved beyond reasonable doubt.
     

Conclusions

146. From what has been said I find charges 4, 5, 6 and 8 to have been proved beyond reasonable doubt.
     
147. On the other hand, I have found charges 1, 2, 3 and 7 not to have been proved beyond reasonable doubt. Those charges are therefore dismissed.
     

CHIEF JUSTICE

Solicitor
Attorney General's Office, Apia for prosecution
Toa Law for accused