Police v Samau [2010] WSSC 109 (26 October 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

SEMI SAMAU,
male of Matautu, Apia & Lotopa
Defendant

Presiding Judge: Justice Slicer

Counsel: L Su'a-Mailo and L Taimalelagi for prosecution
S Perese and S Tuala for defendant

Hearing: 23-30 September, 1, 4-8 October 2010
Reasons: 26 October 2010

Charge: Theft As A Servant, Dishonest Dealings and Falsifying Documents

REASONS OF SLICER J

1. The defendant was charged on fifteen Informations with the crimes of theft as a servant, dishonest receiving or dealing with money and falsification of documents, contrary to the Crimes Ordinance 1961 ("The Ordinance").
   
2. The Informations relate to five transactions which, for convenience can be identified as:
   

(1) the Blakelock land ("Blakelock");

(2) the Talamaivao transactions ("Talamaivao");

(3) the Pasia land ("Pasia Milford");

(4) the second Pasia transaction; and

(5) the Fruean/Collins refinance transaction.

3. The Pasia land allegation involves six of the Informations but for convenience will be identified as Pasia Milford, Fruean, and Collins refinance.
   
4. The court has conducted five trials concurrently and while some evidence is common to each charge, each will be separately considered. However, a finding of credibility of a witness in one matter will impact on evidence given in relation to another.
   
5. The Informations engage the operation of the Ordinance, sections 85, 88, 99. Each of the five impugned transactions was the subject of three Informations, which will be identified later in these reasons.
   
6. In essence the prosecution identified four types of criminal conduct namely:
   

(1) theft as a servant (Informations S1799/10, S1800-3/10);

(2) receiving or obtaining money dishonestly (Informations S1729-33/10);

(3) falsification of a deed of conveyance (Informations S1724-7/10); and

(4) falsification of a deed of mortgage (Information S1728/10).

7. The Ordinance section 88 provides an extended definition of theft which states:
   

"Without in any way limiting the generality of the foregoing definition of theft, every person shall be deemed guilty of theft who holds, received, or obtains any money, valuable security, or other thing whatsoever capable of being stolen, subject to any obligation (whether arising from an express or implied trust, or from an express or implied contract, or from any other source whatsoever) to deal with such money, valuable security, or thing in any manner, and who fraudulently or dishonestly deals with it in any other manner, or fails to deal with it in accordance with such obligation."

8. Dishonesty is an essential ingredient of each impugned transaction. Negligence, mistake or incompetence do not constitute criminal conduct.
   
9. The Development Bank of Samoa ("DBS") is a special bank. It advances money for the purposes of agriculture, business and the development of commercial activity. It requires security for the advancement of capital but, as development banks do, takes into account the social and economic interests of Samoa to an extent greater than a purely commercial bank. It is more accommodating to its clients than 'retail' banking institutions and slower to realize on its securities to recover its advances through foreclosure and the sale of securities. It often permits a client to restructure a loan or provide a different security.
   
10. The defendant, a qualified legal practitioner was, at all relevant times an employee of the DBS as the legal manager. His duties were:
    

- to supervise the operations of a section of the Bank;

- liaise with land agents and conduct land sales with those agents and successful tenders;

- to prepare legal documentation necessary for the commercial operations of the Bank or check such documentation as prepared by staff;

- to certify the validity of transactions undertaken by the Bank to ensure compliance with Samoan law and endorse legal action;

- to advise or certify to the General Manager of the Bank that specific transactions had been executed in accordance with law and procedures required by the Bank;

- the management of portfolios;

- to supervise and control the section of the Bank in its dealings with or recovery from defaulting customers, including the conduct of auctions;

- meet and negotiate settlements with clients;

- to advise the General Manager generally on legal issues.

11. He was the officer in charge of other staff of the section.
    
12. The Bank keeps detailed records and documentations in the course of its operations. It has a structured line of control. The General Manager, or in his absence, the Acting General Manager is and was at the relevant times the only person authorised to agree to foreclosure on land or other security and to sign any discharge of mortgage following the sale of property. He was the only person authorised to sign a conveyance of land owned by the Bank. He would act on the advice of the finance officers and the legal manager as to compliance, or accept and carry out decisions of the Board.
    
13. Advice on substantive matters would be provided to the General Manager in a memorandum with a note and initial endorsed indicating the decision made. In the absence of the General Manager his role would be undertaken by an Acting General Manager.
    
14. Fuimaono Falefa Lima ("Fuimaono") was at all relevant times the General Manager although his role required him to travel overseas for periods of time.
    
15. The defendant was regarded as a competent officer and management placed great trust in his execution of duties and performance of his responsibilities.
    

Circumstantial Case

16. The prosecution relies primarily on the documentation to establish its case. Two witnesses, in particular, have given evidence that particular records or services of transactions are false in that they had not created the particular document or operated an account with the Bank as appear in the records. There is a connection in the evidence as between separate transactions, the 'Fruean' and 'Collins' matters which impact on the respective charges. The credibility of the defendant, who gave evidence, touches all transactions. Although the court is concerned with five separate trials, there is some evidence which is common to all and the credibility, or otherwise of a witness will affect findings of fact on other matters. But each case is circumstantial (Tagaloasa Filipaina Faisauvale v Attorney General 2010 CA 17/10). The classic approach to circumstantial cases is as stated by the High Court of Australia in Chamberlain v R (No.2) [1984] HCA 7; (1984) 153 CLR 521, when it stated at paragraph 40:
    

"The Prosecution case rested on circumstantial evidence. Circumstantial evidence can, and often does, clearly prove the commission of a criminal offence, but two conditions must be met. First, the primary facts from which the inference of guilt is to be drawn must be proved beyond reasonable doubt. No greater cogency can be attributed to an inference based on particular facts then the cogency that can be attributed to each of those fact. Secondly, the inference of guilt must be the only inference which is reasonably open on all the primary facts which the jury finds. The drawing of the inference is not a matter of evidence; it is solely a function of the juries critical judgment of men and affairs, their experience and their reason. An inference of guilt can safely be drawn if it is based upon primary facts which are found beyond reasonable doubt and if it is the only inference which is reasonably open the whole body of primary facts. An inference of guilt may properly be drawn although any particular primary fact, or any concatenation of primary facts falling short of the whole, would be insufficient to exclude other inferences. It follow that the insufficiency of a piece of evidence to support an inference of guilty does not by itself warrant the setting aside of a verdict of guilty, if that piece of evidence, however important, is but a part of the whole body of evidence available to support the inference."

17. The reasoning of that case was approved by the Court of Appeal in Tagaloasa Filipaina Faisauvale v Attorney General (C.A. 17/2010).
    
18. In a circumstantial case each piece of evidence is to be considered in the context of others. It is the combined effect or cogency of the sum of the evidence which permits by inference a finding of guilt. An inference of guilt can be safely drawn, although any particular primary facts falling short of the whole would be insufficient to exclude other inferences.
    
19. But, on each case if there is a reasonable hypothesis grounded on the evidence, consistent with innocence then a court, judge or jury, is required to acquit. In Police v Punaopu Pio (1999 WSSC (unrep) 12 April), Wilson J explained the correct approach stating:
    

"When, as here, the case against the accused rests upon circumstantial evidence, before I can find the accuser's guilt proved on circumstantial evidence, I must be satisfied not only that the circumstances which I find proved are consistent with guilt, but I must also be satisfied that the proved facts are such as to be inconsistent with any other reasonable conclusion.

Before I can be satisfied beyond reasonable doubt of the guilt of the accused on any charge involving circumstantial evidence, it is necessary not only that his guilt should be a reasonable inference but also that it should be the only reasonable inference that the proved circumstances enable me to draw. For an inference to be reasonable it must rest upon something more than mere conjecture. If the inference of guilt is the only inference open to me, as the trier of the facts, and upon a consideration of all the proven facts in the case, my proper verdict is guilty.

It is when a number of piece of circumstantial evidence, each separately proved, combine to prove an ultimate fact (the fact of guilt) and do so beyond reasonable doubt, that a charge based on circumstantial evidence can be said to be proved. If the combined effect of several pieces of proven circumstantial evidence does not establish guilt to such a degree, then it is my duty to acquit and find the accused not guilty."

20. It is the coincidence of the several circumstances, each found to be proved, independent of each other, which permit a finding of guilt. Those different circumstances or facts must themselves be proved beyond reasonable doubt. If those facts, as proved, permit an explanation or hypothesis consistent with innocence then the necessary verdict is one of acquittal.
    
21. There has been a lengthy delay between the alleged criminal conduct and the prosecution. That delay is not the fault of the Bank or the prosecution. The defendant had left his employment with DBS in 2003 on amicable terms to take up another position and these matters not discovered until much later.
    
22. In 2007, two matters arose which required the Bank to examine previous transactions and eventually to conduct an audit. The first concerned the bank property at Vaivase. Persons interested in its purchase approached the Bank. A search of the title revealed that the Bank no longer owned the land which had been sold to Fraser and Siaifoi To'o in August 2002. The second concerned an inquiry made in February 2008 by the son of Pasia Milford as to what had happened to land at Saleimoa owned by his mother.
    
23. The ensuing audits uncovered other discrepancies eventually leading to their referring matters to police who conduct their own inquiries. Police referred their investigation and relevant documentation to the Attorney General in 2008 and the prosecutions commenced in 2010.
    
24. The court accepts the evidence of the auditors Paul Chang Wai (exhibits "P1.1-4"); Tamatoa Mariner (exhibits "P3.1-3.9" and "P5.1-5.8") and Faumuina Iona and their opinions based on their examination of the primary documents. It is not necessary to receive into evidence the 'de bane esse' evidence of Mariner since its import is slight and covered by other witnesses.
    

BLAKELOCK TRANSACTION

25. Informations S1727/10, S1730/10 and S1800/10 allege the stealing of the sum of $40,000, the property of DBS between 1 August and 1 September 2002, dishonest dealing with that money and the forgery or falsification of the deed of conveyance necessary to bring about dishonest dealing.
    
26. On 24 January 2000, Asi Blakelock, a debtor of the Bank, conveyed land at Vaivase to the DBS in part satisfaction of his debt. The consideration for the loan was $40,000. It became an asset of the Bank which ought to have been registered in the Bank's fixed asset register. There was no such entry. The file relevant to the transaction could not be located. The accused was shown in the Transit Card (exhibit "P1.6.2") as the last person to have possession of the file, as of 12 November 2002. The card was signed 'Ioane Vesi for Semi'.
    
27. In 2007, a person, interested in the land, approached the Bank, to negotiate the purchase of the Blakelock land. In preparing for these negotiations bank officers were unable to locate the relevant file or documentation. A search of the Land Register showed a conveyance of the land described as Parcel 2741 registered in Certificate Volume 39 Folio 191 from the DBS to Fraser Faavae To'o and Siaifoi Viliamu To'o on 20 August 2002 for a consideration of $40,000. The signature on the deed of conveyance and discharge of mortgage appeared to be that of Fuimaono, the General Manager. The witness to his signature was Semi Samau, the defendant. He had also certified, by signature, two compliance declarations required by the Alienation of Freehold Land Act 1972 and the Land Registration Act 1992.
    
28. The discharge of mortgage also witnessed by the defendant, had been originally dated 20 May 2000, but amended to 20 August 2002. There was no evidence as to whether the Bank had mortgaged its property to itself or why it was necessary to provide a discharge.
    
29. The discovery caused the Bank to conduct an internal audit undertaken by Paul Chang Wai, the manager for General Audit. He searched receipt books, journals, statements of accounts and the register for evidence of payment to the Bank. The search was conducted for a period of three months either side of the date of the conveyance.
    
30. A preliminary examination showed that on 8 November 2002, the Bank received a cheque No. 346528 amounting to $15,500 receipted 506424 and $1,550 receipted 506425 under the name Asi Blakelock. Those receipts had been cancelled and there was no evidence of either sum being paid into the Bank or credited to the Blakelock account.
    
31. On 16 November 2007, the General Manager wrote to the defendant setting out the difficulty and asking whether Samau, as the legal officer who had handled the transaction, could assist 'in clarifying this matter, and providing any information to confirm the land sale and receipt of sale proceeds'. He also asked if the defendant had kept possession of the file or knew 'of anyone who may know about the missing loan file'.
    
32. Samau replied by letter dated 28 November enclosing a bank cheque for $40,000. The letter stated:
    

"Thank you for your letter of 16 November 2007. I was contacted by Mr To'o last week saying that the Bank was enquiring into the sale of the Vaivase property to him.

Yes the sale was done quite a while ago and I regret that I do not have any records as you have asked.

I do not recall the method of payment but Frazer said that he recalls paying the purchase price by cheque. I have asked him to go back through his bank records to see if a cheque for $40,000.00 was ever presented.

I cannot properly recall whether the cheque was given to me personally or to one of my staff members.

I suspect the cheque may not have been presented. Frazer has promised to check his accounts for me. Because of the time frame that has elapsed he needed some time to go through his accounts to check.

After lengthy discussions with Frazer it was agreed it was best to fix up the Bank's $40,000.00 and he would look through his records.

I hope this helps resolve your end and I will sought (sic) things out with Frazer."

33. Further correspondence was exchanged between the two concerning a claim by the Bank for interest foregone in the amount of $32,608. Samau paid $20,000 in part payment of the claim but declined to pay the balance as being excessive and beyond his ability to raise the sum. In his correspondence he admitted responsibility but denied criminal conduct.
    
34. The audit report discloses that the defendant acted as the solicitor for both the Bank and the purchasers who reside in Australia. As such he would, at settlement provide the money and receive it on behalf of the vendor. At trial, he maintained that he often delegated the settlements and accounting to other officers. If he acted for the purchasers he must have been present at settlement. In any event, he was responsible for ensuring the removal of the title from the assets register. If he certified, he must have been satisfied that the Bank had been paid the money. Even if there had been a technical error the money, if paid, would have shown up in some form or another, in the Bank's system. There was no evidence of receipt or posting. Money showed up in November 2002, six days before moneys receipted to Asi Blakelock (exhibit "P1.6.3" receipts 506250-506251) later cancelled (506424, 506425) under the record dates 05/11/02-12/11/02 Bank Rec 36.
    
35. The claim by the defendant that it was possible that To'o had not paid the purchase price is unsatisfactory. His evidence at trial that he remembers nothing of the transactions and his inability to say what, if any, further enquires were made of the purchaser is an inadequate response.
    
36. His prompt return of $40,000 and a further payment of $20,000 for lost interest shows consciousness of guilt.
    
37. The court will consider separately the authenticity of the vendor's signature on the conveyance and discharge.
    
38. At trial, Samau agreed that he had dealt with the transaction and at some stage was in possession of the file. He denied having taken the money.
    
39. Much turns on the general credibility of the defendant both in his evidence generally and the specific explanations he provided to meet evidence adverse to his cause. I do not accept him as a credible witness in relation to the Blakelock transaction or his reasons for immediately returning the money.
    

LETTERS

40. The defendant wrote to the Prime Minister, the Chief Executive Officer of DBS and the Chairman of its Board on various occasions between October 2008 and April 2010. In those letters he sought clemency and sought to redeem his mistakes by a full restitution of the missing funds. He asked that the criminal charges be dropped. In doing so, he accepted responsibility for the losses suffered by the Bank but did not admit criminal conduct. The prosecution contends that the court should regard them as admissions of guilt. The court will not do so. The tenor of the letters is equally consistent with the plea of an innocent man claiming to have been wrongly accused of a crime.
    
41. The initial letters to the General Manager are different. The explanations for the missing money are admissions against interest. The explanations for the possible ways in which the missing moneys could be explained and in particular, the immediate return of the $40,000 and the subsequent payment of $20,000 as interest are relevant to the question of guilt. He could have queried the accuracy of the bank records or waited until To'o had provided an account of the dealings with the Bank. Instead, he stated that it may have been To'o who had failed to make payment but he (Semi) would pay the money and sort the matter with To'o at a later date. The immediate return of the money is consistent with a person attempting to avoid potential consequences of past criminal conduct.
    
42. The remaining letters to the General Manager contain no admissions which could show consciousness of guilt. He was entitled to decline to meet with or be interviewed by the bank auditor. No adverse inference will be drawn from that evidence.
    
43. The court is satisfied beyond reasonable doubt that the defendant is guilty of the crimes alleged in Informations S1727/10, S1730/10 and S1800/10.
    

TALAMAIVAO TRANSACTION

44. The Informations S1729/10, S1724/10 and S1803/10, allege the theft of $11,500, the property of the Bank between 1 February and 1 March 2002, fraudulent dealings and falsification of documentation.
    
45. Mafa Talamaivao and her husband, now deceased, were directors of a trading company Siasau Services Limited, who had mortgaged property registered in Volume 31 Folio 333 at Vaiaata to the DBS. The Bank had foreclosed on the land and on 25 February 2002 exercised its power of sale to David Wong Tung and Henry Fruean for the sum of $25,000. A conveyance was executed under the name of the General Manager whose signature is a matter of dispute, and witnessed by the defendant. Samau had also certified the documentation.
    
46. The court accepts the evidence of Mafa Talamaivao, the then accountant for the company that it received no notice of the sale as required by law. It was the defendant's responsibility to ensure that such notices were sent.
    
47. Semi Samau attended the settlement on behalf of the Bank on 13 February 2002. The settlement took place in his office, away from the trading or cashier's section. The purchasers were to take title as joint tenants and released from any mortgage which might have governed the land. The discharge (exhibit "P2.6") tendered at trial is a certified copy with apparent differences in the typed sections, some appearing in bolder print than others. The signature of the General Manager is faint and I am not prepared to draw any inferences adverse to the defendant on the authenticity of the document. However, there is a difference in the boldness or colour of Samau's signature which suggests that they were signed at different times.
    
48. Wong Tung paid, as his contribution the sum of $11,500 by bank cheque No. 232589 drawn on the ANZ Bank. Henry Fruean paid with cash. Samau acknowledged at trial that he had physically received both the cheque and the cash. It is the cash payment of $11,500 which is the subject of this prosecution.
    
49. Samau issued a receipt, although in his evidence he described it as simply a record of the transaction. The document is not a normal receipt which accords with those issued by tellers or cashiers. It is set out on a standard letterhead of the Development Bank of Samoa 'Faletupe o le Atinae o Samoa' with the standard postal and telephone addresses. The document provided:
    

"Received from the HENRY FRUEAN and DAVID WONG TUNG of Apia, Samoa, 13 day of February 2002 the following Cheque No. 232589 ANZ Bank of Samoa Limited for the amount for the amount of ELEVEN THOUSAND FIVE HUNDRED TALA ONLY ($11,500.00) AND cash of ELEVEN THOUSAND FIVE HUNDRED ($11,500.00), a TOTAL of TWENTY THREE THOUSAND TALA ($23,000.00) as payment of the Purchase Price of TWENTY FIVE THOUSAND TALA ($25,000.00) for the property of Vaiaata, in Savaii:-

*The Bank will recover the balance of $2,000 from the land agent National Property Service Limited after paying its commission of 5% of the sale price."

50. Amanda Auliitia, the bank officer who the defendant claimed had witnessed the document gave evidence and had no recollection of ever signing it. She denied that she had received any money and there was no suggestion in cross-examination that she had dishonestly taken the money.
    
51. Wong Tung's cheque was receipted on 5 March 2000 (exhibit "P2.4"). It was deposited with the ANZ Bank, the DBS trading banker, on 6 March 2002 together with other cheques. It was credited to the Talamaivao account (repayment 487346) on the previous day. There is no record of a receipt, deposit slip or a posting of a credit for the cash payment by Fruean. The Wong Tung receipt was marked in accordance with procedure as coming from Niko Talamaivao and given the account number 232589 to allow for posting.
    
52. Whoever wrote the receipt must have been given information to complete those details. That information could only have come initially from Samau. In his evidence Samau said that he left it to others to take the money to the cashier. Amanda Auliitia, the legal secretary told the court that she never handled money, cheques or cash, and never had dealings with the cashiers. Given the receipt for the Wong Tung cheque it would be surprising that there was not another adjacent to it recording the cash payment. The explanation inferred by the defendant is that one of his staff members who had knowledge of the details of the payment and the Talamaivao account stole the money.
    
53. At trial, the defendant claimed that the absence of records meant that the money could have gone missing within the system, wrongly posted or was evidenced by a receipt no longer in existence. Here receipt number 487346 was discovered and no corresponding entries for the Fruean payment found.
    
54. On 10 March 2008, the General Manger wrote to the defendant referring to the claim and asking for assistance in clarifying the matter. Samau replied on 19 March 2008 advising that he did not have any relevant records and in a later letter of 16 June addressed to the auditor stating:
    

"The file should note that the client was long time in arrears and as part of the bank's recovery actions the property was sold. I recall the property was a portion of land left over from sale of a much bigger portion sold to about 20 acres I do not have records to establish exactly what happened but do recall the buyers as stated in the letter setting out the monies received and the amount the property was sold for. Your records should have these details in the file.

I cannot explain how the monies you say are not accounted for. You will note the letter noting the receipt of payment from the buyers was signed by me and witnessed by one of the officers. It appears to be my former secretary Amanda.

For the record the senior securities officers normally prepared the deeds as was common practice and signed by the General Manager and witnessed by myself.

I do not think I would be foolish to keep any funds myself especially when there was a witness to the monies received. I do not take monies to be receipted as normally one of the staff would do this task."

55. The defendant stated at trial that it is likely that he handed the money to another officer and that any loss was a result of carelessness, dishonesty or a posting mistake by another bank officer.
    
56. David Wong Tung gave evidence that he and Henry Fruean met with the defendant on 13 February 2002. Wong Tung handed over a bank cheque and Fruean, an equivalent sum of $11,500 in cash. Wong Tung kept the receipt (exhibit "P2.2"), and the deeds. He received no other form of receipt from the Bank. The bank cheque was deposited on 5 March and credited to the Talamaivao account. Two other cheques for $175,000 and $24,000 deposited in the same account on 5 and 7 March respectively have nothing to do with this transaction. There is no record of the receipt or posting of the $11,500 in cash. The land sale had been registered on 25 February 2002, long after the primary transaction.
    
57. The deposit slip for the Wong Tung cheque is marked with the number 2472788 which is said to identify the transaction.
    
58. Suafaiga Henry Fruean gave evidence that he had handed over the sum of $11,500 in cash.
    
59. The Talamaivao transaction was described in the deed as a mortgage sale reciting the principal loan and a default of principal and interest as $372,623. The evidence from bank officers was that the loan account was not in default. The account showed a debit balance of $1.3 million as at October 2000, which had been reduced to $1.09 million as at the day before the deposit of the $11,500. The record shows it to have been a non-performing loan rather than a default.
    
60. Neither purchaser received the prescribed notice as stated in the deed of conveyance.
    
61. The defendant was asked by letter dated 10 March 2008 whether he could provide any assistance in clarifying the matter re providing any documentation, since the DBS file was missing and the Transit Card showed that the file had last been in Samau's possession. Samau replied on 19 March advising that he had no records and could not recall being the last person 'to use the records'.
    
62. At trial, he agreed that he had received the money but could not explain why it had not been receipted or banked. He did not impress as a witness. His explanation was that although he accepted responsibility for the mistake, it was others who were to blame. He suggested that the General Manager signed documents in the absence of a witness, the Bank engaged in bad practices, Wong Tung and Fruean were wrong in their understanding that the February document was a receipt, another bank officer failed to forward the correct receipt 2472788 to Wong Tung, both purchases were mistaken in claiming not to have received the prescribed notices and another employee might have stolen the money.
    
63. The court does not accept him as a credible witness.
    
64. The evidence requires an inference of guilt, as the only one open on the evidence. The court is satisfied beyond reasonable doubt that the defendant is guilty of the crimes of theft as a servant, and dishonest dealing with that money, the receipt document, comprised in Informations S1729/10 and S1803/10.
    
65. Complaint S1724/10 is specific to the conveyance. For reasons which will be later stated the verdict is not guilty and the Information dismissed.
    

THE PASIA MILFORD TRANSACTION

66. Pasia Eddie Milford was a DBS customer whose account was in default. It was his son who wrote to the Bank on 22 February 2008 regarding the sale of two acres of land at Saleimoa which he claimed belonged to his mother Anita Mulitalo (Milford). It was that inquiry which led to further investigations concerning the defendant. Anita Mulitalo told the court that she had received a deposit for the sale of the land from her niece. She, Mulitalo did not learn of its sale until much later.
    
67. The land was in fact five acres. Pasia Milford had mortgaged the land to the Bank in March 1998, as additional security for other loans. He could not meet the repayments and in May 1998, the Board approved foreclosure and sale. There was no ready buyer.
    
68. The dealings with this land are linked to the remaining charges concerning the Fruean refinancing transaction and the failure to account for the sum of $20,000 derived from the sale of two lots subdivided from the five acres.
    
69. In June 1999, Henry Mataalii offered to purchase the five acre allotment for the sum of $114,000. Mataalii had been a missionary in Samoa from 1996-1999 returning to the United States in that year. The auditor's report indicates that he died in 2003.
    
70. The Bank accepted the offer following the written advice from the defendant. Allowing for the realtor's commission, the Bank could expect to receive an amount of $104,800 to be credited to the Milford account. The General Manager signed off on the proposal on 30 June 1999.
    
71. There is evidence relevant to other Informations which suggest that at some stage Mataalii accepted an amended allocation of 4 ½ acres. The land had been subdivided into twenty allotments each of approximately 1,100 square meters or ¼ acres. On 14 February 2000, fifteen blocks were conveyed to Henry Sa Mataalii for a purchase price of US$39,000, that sum being the Samoan equivalent of ST$104,800, the net price agreed by the Bank. The cheque for ST$104,850 was paid by the Richard's Law Firm on 14 February 2000. Samau certified the transaction, and witnessed the signature of the General Manager
    
72. On 3 March 2000, Samau reported to the General Manager that the settlement of the Milford matter had been completed and the sum of $104,850 credited to the Milford account. A notation had been altered to read five acres. Another notation reads:
    

"When I was in NZ I met with one of Eddie's sons who indicated that they were willing to arrange settlement of an O/S debt just to save their mother's property at Alamagoto would relay the phone and address to...legal."

73. There was nothing untoward in the transaction. The address of the purchaser was shown as Saleimoa. The payment was receipted and credited to the Milford account.
    
74. The Bank had received its anticipated return but the purchaser had not received the five acres for which he had first tended.
    
75. Five quarter acre lots remained. It is their disposition which is the subject of the remaining charges.
    
76. Informations S1726/10, S1731/10 and S1802/10 relate to the sale of two of those blocks and the receipt of $25,000 during the period of August 2002 and October 2002.
    
77. On 13 August 2001, two of the subdivided lots, Parcels 1137 and 1138 were transferred to Henry Sa Mataalii for a consideration of $25,000. Why Mataalii would agree to pay an additional sum over and above the original tender is speculation and irrelevant to these proceedings. The deed was certified by the defendant. Payment was made by cheque No. 001623 from the Richard's Law Firm on 30 August 2001. A receipt was generated in the name of E. Milford and the account number entered as 10-5243. The cheque for $25,000 was credited to that account which was in the name of Aloma Fruean on 31 August. The maiden name of Aloma Collins was Fruean. She had given evidence that she had never used her maiden name for over 40 years. At trial, the defendant maintained that he never knew of her maiden name, a statement belied by his later claim that he had opened the Fruean account at the instigation of her husband. Collins gave evidence that she had never held an account with DBS nor used any moneys from that account.
    
78. Samau claimed to have sent a letter to Aloma Fruean on 3 September 2001 (exhibit "3.12") under the reference account 5243 stating:
    

"The Bank acknowledges your recent payment of $25,000 on 31 August 2001. Your account is well in advance at present."

79. Aloma Collins denied receiving the letter.
    
80. It was this land which Anita Mulitalo's son had raised with the Bank. The sale of 13 August and the payment of $25,000 had been receipted to be credited to the account of Pasia Milford but the account number entered onto the receipt was that of Aloma Fruean and credited to an account in her name.
    
81. It is first necessary to explain the system applied by the DBS in dealing with its accounts. DBS was a development, rather than a retail bank. It maintained its own account with the ANZ Bank. Payments by a purchaser of the sale of foreclosed land would generate a receipt in the name of the debtor. The credit was to be allocated to the Bank's debtor and posted to the appropriate account. Thus a receipt in the name of X would be marked with the account number of the debtor or written in the name of the debtor so that the amount paid could be allocated to that account. Here the payment was shown as being credited to Pasia Milford but the account number shown as Aloma Fruean.
    
82. The audit trail showed that the Bank did not receive the $25,000 to be credited to the Milford account in reduction of the debt. Instead it was posted as a credit to the Aloma Fruean account.
    
83. It is this transaction which is the subject of Informations numbered S1726/10, S1731/10 and S1802/10.
    
84. The family name of Aloma was Fruean, identical with that of Henry Fruean, the purchaser of the land in the Talamaivao transaction. On marriage she took and maintained the name Collins and told the court that she always used that name in her social and business life. Her husband Pat died shortly before trial, depriving the prosecution of a witness who might have given an account of his dealings, if any, with the DBS.
    
85. The purchase price of $25,000 was acknowledged by receipt No. 480994 issued in the name of E. Milford since it was to be credited to his debit account. The receipt contained the notation 'from Henry Mataalii' and the cheque No. 001628. Records of the Richard's Law Firm showed that cheque No. 00163 had been paid by that firm to the DBS on 30 August 2001 on behalf of Henry Mataalii. Their records showed an earlier payment of $104,850 on 14 February 2000 to DBS, again on behalf of Mataalii for the earlier purchase of the Saleimoa land. The $25,000 was credited to an account No. 10-1005243 held in the name of Aloma Fruean on 31 August 2001.
    
86. Thus, although the money was deposited with the ANZ Bank, the internal records of DBS ought to show a posting of the money to the Milford account. Only a person with knowledge of both transactions could generate a 'Milford receipt' to be posted to a Fruean account. The legal section possessed such knowledge.
    
87. It is the prosecution case that:
    

(1) the General Manager of DBS approved the sale of the five acres Saleimoa land to Mataalii for the sum of $114,000. After the land agent's commission, the net return to the Bank would be $104,800.

(2) the land had been subdivided into twenty ¼ acre blocks.

(3) the initial sale to Mataalii of fifteen blocks had yielded the Bank a return of $104,800 paid by Richard's Law Firm on 14 February 2000 and correctly credited to the Milford account.

(4) the second sale of two blocks to Mataalii on 13 August 2001 yielded a return of $25,000 which was receipted to the Milford account but credited to an account in the name of Aloma Fruean.

(5) Aloma Collins, nee Fruean had no such account with the DBS in either her married or maiden name.

(6) the account had been created and used the account as his own and thereby stole the sum of $25,000.

88. The defendant claims that the Fruean account was genuine having been opened by Pat Collins, in his wife's name and the crediting of the $25,000 to the Fruean account a mistaken posting by other officers of the Bank. A faxed letter dated 7 August 2000 from the New Zealand law Johnston, Sheryl and Tier ("D5.1") stated:
    

"I understand that the half acre property at Saleimoa is to be sold to Henry Mataalii for $TALA 25,000.00 and that the net proceeds of the same will be paid direct to the bank in further reductions of my client's indebtedness."

89. Samau replied by letter dated 29 August 2000, stating:
    

"With regard the sale of Henry Mataalii, the Bank has not received any written confirmation from his lawyers that their client will buy the remaining half an acre. Eddie has been to see Peter Petaia of Richard's Law Firm. Peter acted for Henry Mataalii on the last sale. He states that Peter has contacted Mr. Matalii about the proposed sale and that he would contact the Bank with a reply from his client. The Bank has not yet heard from Mr. Petaia or Henry Mataalii."

90. The letter was wrong. The transaction had been completed on 13 August and the money had been received and credited to the Fruean account. The letter was intended to lead Milford to believe that the money would be received in due course and provided an explanation as to why it had not been credited to his account. Samau's denial that the money had yet to be received destroys any claim that the Fruean posting was simply an error by another bank officer.
    
91. Samau said that he had opened the account in the name of Fruean at the behest of her husband Pat. He was unable to explain how the account was set up or how procedures such as specimen signatures, cheque books and the like were put in place given that on Collins' version she had attended the Bank on one occasion only to settle the land transaction.
    
92. The 'posting' could only have been made by a person with knowledge of both transactions and could generate a 'Milford receipt' to be posted to a Fruean account.
    
93. Samau claimed that he often delegated other members of his staff to complete the details of the transaction. Thus another would be provided with the information and left to finalise the procedures. He inferred that it could have been another who either took the money or mistakenly caused a wrong posting. But it was only the defendant who possessed the information required to complete the second Mataalii sale, the Milford debt, the maiden name of Collins and the account said to have opened at the behest of her husband Pat. In his letter of 29 August, claimed that payment had yet to be made, a matter which the defendant knew to be wrong.
    
94. Saumagi Wong Sin, an accountant employed by DBS said that he was instructed by the legal section to reverse the posting by the legal section (exhibit "P5.11", "P5.12").
    
95. There is a chain of coincidences.
    

The Defendant:

(1) had recommended the sale of the Milford five acres block at a net $104,850;

(2) was aware of the subdivision of twenty lots;

(3) received the $104,850 and was aware that it met the Bank's expectations for the sale of the whole of the land;

(4) knew from other transactions the maiden name Fruean, for reasons later to be shown;

(5) completed the second sale to Mataalii and received the proceeds;

(6) set up the Fruean account;

(7) witnessed and certified all of the documentation in each case;

(8) reported to the General Manager that the Milford matter had been successfully completed; and

(9) told Milford's solicitor that the $25,000 had not been received.

96. The court rejects the evidence given by the defendant at trial. His answers were evasive and self-serving. He contradicted himself and sought to place blame on anyone but himself. The court finds that he acted dishonestly.
    
97. The prosecution relied on Information S1731/10, the obtaining of money fraudulently or dishonestly, as its primary allegation and has regarded the allegation of theft simpliciter as an alternate charge.
    
98. The court is satisfied beyond reasonable doubt that Semi Samau is guilty of the crime of receiving the sum of $25,000 for his own benefit by acts of fraud and dishonesty.
    
99. He is convicted of the crime stated in Information S1731/10. The alternate Information S1802/10 is dismissed.
    

THE FRUEAN ACCOUNT

100. These charges, Informations S1725/10, S1733/10 and S1801/10 concern the alleged defalcation of $20,000 being payment for the two remaining ¼ acre blocks subdivided from the original five acre lot at Saleimoa, previously owned by Anita Mulitalo and mortgaged to the Bank. By a deed of conveyance, witnessed and certified by the defendant, the lots were transferred to Henry Mataalii on 30 September 2002, the same purchaser of the previous eighteen lots which are the subject of these proceedings. The purchase price was $20,000.
     
101. The auditors were unable to find any evidence of the payment of that sum to the Bank. The evidence supporting the claim of dishonest dealing is linked to the remaining charges concerning the Saleimoa land.
     
102. On 30 September 2002, a deed of conveyance was executed transferring Parcels 1043 and 1044 of the remaining subdivided blocks to Henry Sa Mataalii for the consideration of $20,000. It was certified by Samau, who claimed that he had witnessed the signature of Fuimaono Falefa Lima, the General Manager. Fuimaono had not been in Samoa on that day and denied that he had signed either the conveyance or the accompanying mortgage.
     
103. The passport tendered at trial showed that Fuimaono had left Samoa on 19 September and returned on 1 October 2002. He was in Brussels as at the date of the execution of the document. At trial, Samau claimed that it was common practice for the General Manager to pre-sign a deed and return it to Samau for witnessing. In this case he would have pre-signed the deed two weeks earlier. Whilst the General Manager conceded that some of the signatures 'resembled' his own and he could not remember signing a specific document, on this matter he was adamant. He did not and could not have signed this document, which bears the certification and alteration of the defendant.
     
104. The transfer was to Mataalii. The deed itself was not registered on 15 June of that year. The backing sheet shows the lodgement was made in the name of Semi Samau, solicitor, Apia. He left the Bank in that year but the precise date is uncertain.
     
105. There is no record of the receipt of this money by the Bank or its crediting to the Milford account.
     
106. The contract of sale to Mataalii dated 17 June 1999, provided for the sale of the land containing 4 ½ acres and the notation at the foot of the contract states:
     

"...of the 5 (five) acre block, 2 quarter acre pieces go to Milford's niece, Naui Patu."

107. Evidence has shown that Anita Mulitalo Milford had promised the land to her niece and the Bank requested to accommodate the request suggesting the sale of other land to make up the difference in the security. It is likely that the remaining two ¼ acre lots were the ones leftover from the original concession and might be the reason for the notation on the document (exhibit "P3.11") earlier referred to concerning the request made from New Zealand. Anita Mulitalo (Milford) had insisted on the retention of these blocks.
     
108. A reason for the delay in the transfer of the three blocks comprised in the second transfer to Mataalii of 13 August 2001 was said by Samau to be that some of the blocks were taken from an adjoining allotment and the delay caused by the necessity to issue fresh or amended titles. This transaction occurred on 30 September 2002. Transfer of the two blocks to Mataalii might explain the notation referred to above. The problem with this alternate hypothesis is that if Mataalii contracted for the purchase of 4 ½ acres why, through documentation certified by Samau was five acres transferred to him through three transactions.
     
109. Samau gave no oral evidence of any verbal agreement with Mataalii who is shown in a document as living at 2392 Benhill Avenue, Lomita California 90717.
     
110. The memorandum of 3 March 2000 confirming the completion of the Milford transaction and the receipt of $104,850 and which has been altered from 4 ½ acres to 5 acres contains the advice signed by Samau:
     

"O/B is to be recovered from Alamagoi land sale - I'm negotiating with client's sisters in Hawaii the possible settlement of remaining balance."

111. The memorandum contains a notation dated 5 March 2000 initialled by the General Manager "what about the agreement? should we sell them. I advise client's son living in NZ."
     
112. It may be that the defendant was covering his tracks. The General Manager was adamant that he, at all times, believed that the whole of the five acres was to be sold. He only became aware of the differences in July 2000, a much later time. It may be a false transaction designed to satisfy Mataalii that he had in fact received the full five acres. It may be that it was a false sale. It may be that it was used by the defendant as a security to obtain moneys after he left the Bank. There is no evidence that the sum of $20,000 was paid into the Fruean account.
     
113. The hypothesis that the transaction was intended to rectify the Anita Mulitalo matter is a reasonable alternative to the allegations of theft of the obtaining of money by dishonesty. It is likely that the defendant was dishonest but the evidence is insufficient to show that the only reasonable inference is that he took or received the money.
     
114. The defence raises a more plausible explanation.
     
115. The total area of land sold by Milford to Mataalii was 2.0228 hectares (exhibit "P1.13"). The General Manager had authorised the sale of five acres, its equivalent, but became aware of a variation in July 2000 (exhibit "D5"). The sale to Mataalii as amended referred to above, was for 4 ½ acres and the first deed conveyed 3 ¾ acres (exhibit "P3.4") since all titles for the subdivision had not been issued. The second sale of three lots increased the land conveyance to Mataalii and was paid for by Richard's Law Firm. That left two ¼ acre blocks remaining which was sufficient to make up the acreage purchased by Mataalii. The delay in the conveyance was because the lots described in the third and final transfer (exhibit "P4.1") had been parts of Parcels 1043 and 1044 of the original titles. In order to complete the full allotment of land to Mataalii "P4.1" was effected later in time. Matters said to support the hypothesis were:
     

(1) the purchaser was represented by a competent lawyer;

(2) there was no complaint from Richard's Law Firm;

(3) there was no evidence that Richard's Law Firm had paid the $20,000 for the last three lots;

(4) it is possible that money had become admixed with a Johnston posted transaction;

(5) no actual money was paid but the Milford account appeared to be in order; and

(6) the adjustment of $87,105 made to the Milford account on 11 August 2003 might have represented a notational credit included in the 'write off' of the loan.

116. The entry of the loan was but an accounting exercise.
     
117. Either of the above hypotheses is at least consistent with the evidence led at trial.
     
118. Fraud is certainly a possible inference but consistent with Chamberlain an alternate reasonable hypothesis deprives the prosecutor's ability to show that criminal conduct was the only reasonable evidence capable of proving guilt on the allegations comprised in the Informations.
     
119. The defendant will be acquitted of the charges comprised in Informations S1733/10 and S1810/10.
     
120. The allegation of forgery is proved. The defendant used a dishonest method in effecting the rectification of his previous act in depriving the Bank of $25,000 of the second transaction and to balance the accounts of the Bank.
     
121. The court is satisfied beyond reasonable doubt that Semi Samau forged the document. He is convicted on the falsification of a deed of conveyance as comprised in Information S1725/10.
     
122. He is acquitted of the allegations comprised in Informations S1733/10 and S1810/10 and they are dismissed.
     

THE FRUEAN/COLLINS ACCOUNT

123. Aloma's pre-marriage name was Fruean. On marriage she accepted her husband's name Collins. Aloma conducted her own business affairs but worked jointly with her husband Pat.
     
124. These Informations S1728/10, S1732/10 and S1799/10 allege the theft and dishonest dealings in an amount of $59,280. On 4 April 1984, Ma'aola Tenny of Washoe County, Nevada mortgaged land at Lotopa registered in Volume 10 Folio 118 of the register to DBS. He did so;
     

"...in consideration of certain advances and accommodation granted or to be granted at the Mortgager's request...to Taua Latu Lome of Lalomanu Aleipata, Cabinet Minister and Anna Lome, his wife."

125. The mortgage effectively was a guarantee for another's loan. Following default, the Bank called in its security and foreclosed on the property. The date of default was stated as 31 March 1995.
     
126. Ana Latu Lome had two accounts numbered 46205 and 42403. The former had been treated as a 'non performing loan.'
     
127. The Bank had placed a reserve price of $184,000 on any sale. The property was hard to sell. In 1999, Pat Collins made a tender bid of $115,000 which was rejected. The Bank re-advertised the mortgage sale without success. In October 1999, Collins again contacted the Bank offering '$120,000 (the) price to include legal costs of conveying and discharge.' The defendant prepared a written memorandum for the General Manager which included:
     

"....He is offering a cash settlement of $120,000.00."

128. The recommendation (exhibit "P5.2"), a copy of which is annexed to these reasons, was that:
     

(i) the Bank accept Mr. Collin's offer of $120,000 but exclusive (not inclusive) of legal costs...

(ii) He can pay his own conveyancing costs;

(2) Inform mortgagor in writing of the proposed sale; $60,720 deposit; $59,280 refinance;

(iii) Notify client of the Bank's mortgage sale and for her to account to her sister whose property is now being sold.

129. The memorandum dated 14 October 1999 is signed by the defendant. The General Manager made some notations on the document requiring Collins to pay 'and other legal costs' and 'include our (own?) legal costs.'
     
130. The terms of the document are disputed. The General Manager maintains that the original proposal made no reference to partial refinancing and that the original referred to 'cash settlement'. The prosecution contends that page 2 was written after the event and the last page altered to cross out 'cash settlement' and the inclusion of 'proposed sale (possibly overwritten) $60,720 deposit, $59,280 refinance' placed there by the defendant to justify his later dealings with the land. The notation of the Assistant General Manager 'recommendations supported' was to the unaltered memo.
     
131. The defendant denies altering the document.
     
132. The defendant attended the settlement. Aloma Collins says she attended a meeting with Samau with her relative and driver Telesia Nimo and handed over $120,000 in cash, a claim supported by Nimo. Collins said that the money had come from a recent court award. Samau claims that only one half of the purchase price was paid in cash with the balance to be financed by a refinancing loan. He relied on a receipt dated 17 November 1999 for $60,720 in support of his claim that the payment was part cash and part refinance. The General Manager denies that he agreed, at any time, to the refinancing proposal.
     
133. Samau acted as a solicitor for both parties at the settlements. He effectively controlled both sides of the transaction. Aloma Collins said she had no further dealings with Samau on the DBS transaction.
     
134. In a memorandum dated 22 April 2000 (exhibit P5.6) the defendant instructed his staff:
     

"Re: Aloma Fruean /Refinanced Land Purchases.

1) Please note, loan to go under wife's name as she is the owner of the new property.

2) The Conveyance is signed under her name.

3) The GM will sign the Discharge of our original mortgage.

4) Prepared our mortgage over the ppty to be conveyed to the client.

5) Note this account had been approved by GM to remain under Legal Manager for follow up.

6) Note also that all refinanced land purchases will now be handled under my portfolio – the logic is, the negotiations and handling of all these refinance land purchases are dealt with by Legal Manager & now we have our own loan portfolio's, its best if our division is responsible for the follow up wk.

7) The foreclosure of these land sales are also our responsibility."

135. Collins denies entering into any mortgage with DBS. She had paid in cash and was a customer of another bank.
     
136. On 4 April 2000, a deed of mortgage was witnessed and stamped by Semi Samau and registered on 3 May 2000 with the Samoa Land Register at 9:00 Volume 10 Folio 18 (exhibit "P5.4").
     
137. It purports to be a mortgage for an unspecified amount between Aloma Fruean, absent address or occupation, and the Development Bank of Western Samoa ("DBWS"). All previous mortgages, in standard printed form were entitled the Development Bank of Samoa in accordance with the change of name of the Nation State. Its recital reads:
     

"In consideration of certain advances and accommodation granted to or to be granted at the Mortgagors request...to (blanked out) Aleipata, Cabinet Minister and..."

138. The remainder of the wording following 'and' is blanked or tippexed out.
     
139. It is identical to the mortgage dated 4 April 1984 (exhibit "P5.5") entered into by Ma'ala Tenney naming Taua Latu Lome and Ana Lome with respect to the same land and which was sold through foreclosure to Aloma Fruean.
     
140. It is a forgery. Even the initials 'MD' appear on the same document. Collins denies her signature or initials. The only genuine portions on the document are the witness signature of Samau, his stamp 'Semi Samau, Solicitor, Apia' and the lodgement name.
     
141. On 22 April, a document was generated again on a form entitled 'Development Bank of Western Samoa'. The form document was headed 'Agreement for Loan' and the amount stated as $52,280. The purpose was said to be:
     

"Refinanced Land Purchase By Mortgage Sale ¾ acres bought from Maaola Tenney - Ana Latu Lome's Account."

142. Collins denied that she had entered into a loan account with DBS or that it was her signature or initials on the document. In the deed of conveyance (exhibit "P5.10") the purchaser was described as Aloma Collins. Her maiden name was spelt 'Fruean'. In the purported agreement it is spelt 'Frugan', immediately under her purported signature. On the purported mortgage it is Fruean.
     
143. The loan application prepared by the defendant and which antedated the purported mortgage and genuine conveyance was a forgery effected by Samau.
     
144. In an undated memorandum, Samau instructed staff to reconcile the transactions between accounts 46205 and 42403, which follow in detail the paper trail - they speak for themselves and show inadequate steps to cover the fraud.
     
145. On 17 November 1999, Aloma Collins entered into a genuine mortgage with her own bank ANZ. Semi Samau had acted for her on that mortgage charging her for both the conveyance from DBS and the mortgage to ANZ. The ANZ mortgage was lodged on 29 November 1999, and registered on 21 December at 12:05. The DBS mortgage was lodged on 31 May 2000.
     
146. On 17 November, the sum of $60,720 was lodged in the account of Ana Lome, representing part of the Collins' purchase. On 31 May 2000, an amount of $60,720 was debited, as an adjustment 655/00, from the same account. The postings coincided with each transaction. On 31 May, the sum of $52,280 was debited, as an adjustment to 656/00 to the Fruean account. The coincidence of the sum of payments is that their sum was $113,000, an amount close to the money paid by Collins. The difference can be explained by interest allocations and other transactions at or near the impugned transactions. Saumagi Wong Sin siad that he had been instructed to reverse the entries (exhibits "P5.11" and "P5.12") by the legal section.
     
147. Samau sent a letter to Pat and Aloma Collins on 26 April 2000 confirming the ANZ mortgage. No mention is made of the loan agreement or any mortgage to DBS. He rendered an account of the conveyance of the Tenney land and the mortgage to ANZ. The account included disbursements for stamp duty on the conveyance ($1,200) and a simple mortgage ($20). There was no disbursement for a second mortgage. Collins had paid those costs and disbursements directly to Samau.
     
148. The conveyance and ANZ mortgage were lodged on the same day and both registered on 21 December at 12:00 and 12:05 respectively.
     
149. The DBWS mortgage was registered on 31 May 2000, the same day as the debit adjustment of $60,720 was posted in the Ana Lome account (655, exhibit "P5.8"). and a debit adjustment (656/00, exhibit "P3.7") of $52,280 to the Aloma Fruean account.
     
150. The court rejects the evidence of Samau that he set up the Fruean account at the behest of Pat Collins and carried out the transactions at his direction. The claim is belied by the evidence of Collins and Nimo, the falsity of the mortgage document and the coincidences shown through the bank records and registers. The court accepts the evidence of Fuimaono that he did not authorize any refinance proposal.
     
151. The loss to the Bank which was required to put the accounts in order to compensate the persons named in the accounts was $59,280.
     
152. The court accepts the evidence of Aloma Collins and rejects the evidence of the defendant. There is no reasonable hypothesis consistent with innocence.
     
153. The court is satisfied beyond reasonable doubt that the defendant is guilty of the charges comprised in Informations S1728/10, S1732/10 and S1799/10.
     

FORGERY

154. Each of the five impugned transactions contains an allegation that the defendant forged the signature of the General Manager on the deeds of conveyance and the discharge of mortgage.
     
155. The General Manager was shown each of the documents and agreed that the signatures 'resembled' his own. But he added that he had no memory of signing the documents. The court accepts his evidence on those two matters.
     
156. The General Manager has many duties and in many cases acts on the advice of others whom he trusts. He trusted the defendant. In each instance it was the defendant who witnessed the signature and certified compliance.
     
157. At trial, Semi Samau claimed that it was common practice for the General Manager to:
     

(1) sign conveyances and discharges of mortgage in advance; and

(2) sign conveyances and discharges without a witness, leaving it to Samau to complete the attestation later.

158. Samau is not accepted as a credible witness. The first claim is tenable. A bank officer attending to a settlement would be provided with a signed discharge which he would exchange for a guaranteed payment. The pre-affixed signature would be made to effect settlement. The register "P2.8" shows execution subject to a condition such as:
     

"Discharge of mortgage 8878m on bank being satisfied that discharge to be handed over in exchange of NPF chq to settle account with DBS."

159. The second claim is untenable. It is improbable that a general manager would expose himself to risk in providing unattested documentation disposing of land or security.
     
160. The court is required in a circumstantial case to consider a reasonable hypothesis consistent with innocence in which case it is obliged to acquit. In relation to three of the charges, Informations S1724/10, S1726/10 and S1728/10 there is a reasonable hypothesis that the General Manager signed the documentation in the presence of Samau, accepting Samau's advice that the transaction was in order.
     
161. That being so, the Informations ought to be dismissed. Their dismissal does not mean that the dishonesty charges would fail.
     
162. There is no reasonable hypothesis in relation to Informations number S1725/10 and S1727/10.
     
163. At common law the jury was the arbiters of the validity of handwriting. I will assume, as the fact finder, that role (Birth v Ridgeway 1858 1 F&F 270; Gawne v Gawne 1979 2 NSWLR 449). I have examined other undisputed signatures of Fuimaono and do not accept that it is his signature affixed to the conveyance or the mortgage in relation to the Blakelock transaction. There is little resemblance, even to a person of my limited forensic skills. Evidence of comparison between signatures may be given by a non-expert although it should be treated with caution and given little weight. If the only evidence of the validity of the signatures was my opinion, I could not be satisfied of forgery. There are other reasons why the signature should be doubted mainly;
     

(1) the Bank had purchased the property of $42,000 and was selling two years later for $40,000. A wise manager would have been hesitant to sell a bank asset at a loss.

(2) the conveyance itself does not, as to the others, recite a 'root' or basis of title.

(3) there was no reason to provide a discharge of mortgage signed by the General Manager when no such mortgage existed.

(4) the date of discharge has been altered.

164. The deed of conveyance to Henry Mataalii, the subject of Information S1725/10 likewise bears a suspect signature. It is dated 30 September 2002, lodged on 15 May 2003 and registered on 15 June of that year. Fuimaono was absent from Samoa from 19 September until 1 October 2002.
     
165. The deed was witnessed and certified by the defendant. The Acting General Manager is authorised to sign property documentation in the absence of his superior. Fuimaono did not sign the document and the charges made out.
     
166. The DBWS mortgage was not signed by Collins.
     

VERDICTS

167. The court finds the defendant guilty of the crimes of theft as a servant comprised in Informations S1799/10, S1800/10 and S1803/10.
     
168. The court finds the defendant guilty of the crimes of dishonesty obtaining money as a servant comprised in Informations S1729/10, S1730/10, S1731/10 and S1732/10.
     
169. The court finds the defendant guilty of the crimes of falsification of documents comprised in Informations S1725/10, S1727/10 and S1728/10.
     
170. The court finds the defendant not guilty of the charges comprised in Informations S1724/10, S1726/10, S1733/10 and S1801/10.
     
171. Information S1802/10, the alternate charge is dismissed.
     

(JUSTICE SLICER)