Police v Vandlierde [2010] WSSC 158 (22 October 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

1. MICHAEL VANDLIERDE, male of Vaitele-fou, Manono and Salelavalu
2. SILIPI AFIA, female of Aai-o-Niue.
Defendants

Counsels: Ms R. Titi for prosecution
Mr R. Faaiuaso for 1st defendant
Mr R. Schuster for 2nd defendant

Hearing: 22 June, 23 June & 14 September 2010
Decision: 22 October 2010

DECISION OF NELSON J.

The defendants are jointly charged that at Faleolo Airport between 21st and 24th January 2009 being servants of the Westpac Bank of Samoa they did steal $29,000 in money the property of their employer the said Westpac Bank. To this they have pleaded not guilty and the matter went to trial before this court.

The evidence:

The prosecution case consisted of essentially three civilian witnesses and the police investigating officer. The main civilian witness was Ms Siuli Aiono who is head of Retail Banking for the complainant bank and who has had 20 years of banking experience. She was also the Bank investigator into this matter. She testified that the second defendant was a senior bank officer and was at all material times in-charge of the 23 January 2009 shift at the Banks Faleolo Airport agency involving the defendants. The shift comprised only the two defendants. The first defendant was a junior officer under the supervision of the second defendant.

She said that a discrepancy on the defendants shift was reported to her by the manager of the Banks external agencies and she immediately launched an investigation. The discrepancy was in relation to the paper work for the defendants shift. She firstly checked all the documentation and detected a problem in that the first defendants record being the duplicate receipt from the first defendants M-36 Cash book produced as Exhibit "P-1" for the prosecution for 23 January 2009 did not tally up with the second defendants record produced as Exhibit "P-3" (the original) and Exhibit "P-4" (the duplicate copy) for the prosecution as it should have because standard procedures of the bank require that when the junior tellers limit in cash is reached, he is obliged to pay over the surplus to the senior teller to be bundled up with the relevant supporting documents and then locked away. In this instance "P-1" showed $30,031.02 was paid by the first defendant ("Michael") to the second defendant ("Silipi") but "P-3" showed only $1,031.02 was received by Silipi leaving an unaccounted for amount of exactly $29,000. Added to that was the uncovering of the original entry from Michaels M-36 cashbook for 23 January 2009 produced as Exhibit "P-2" for the prosecution which showed that only $1,031.32 was transferred by him to Silipi leaving again a shortage of exactly $29,000.

The witnesses evidence was that all original M-36 documents are torn off and submitted to head office while the carbon copy record remains with the M-36 book at the agency for the incoming shift to continue as a running record of the agencies transactions. "P-2" was handed in to the main office by the first defendant and all the relevant documents "P-1", "P-2" and "P-3" were signed in the appropriate spaces by both defendants. Also entered into evidence by the prosecution was Silipis M-36 cashbook exhibited as Exhibit "P-6" for the prosecution. That relevantly recorded that only $1,031.32 was received by Silipi from Michael and there is no mention in either "P-3" or "P-6" of the "missing" $29,000.

As a result of these documentary discrepancies the defendants were summoned for an interview by Ms Aiono. Her evidence was Michaels explanation was that he gave the $29,000 to Silipi and that "P-1" represents what actually occurred. He does not know what happened to the original of "P-2" as "P-2" is the carbon copy entry from his M-36 cashbook. He said the original and supporting documents together with the money were all given to Silipi who was supposed to hand it in to the main office. He gave a written statement dated 28 January 2009 to that effect produced as Exhibit "P-7" for the prosecution.

Aiono also testified as to interviews conducted on Michael by her on 27 January 2009 and again on 28 January 2009 and subsequently by the Banks Head of Business and Consumer Banking in her presence on 29 January 2009. A record of these interviews was produced as Exhibit "P-10" for the prosecution but having perused these records I am not satisfied it should be admitted into evidence as evidence incriminating or tending to incriminate the defendant Michael because of these reasons:

1. it was not signed by Michael;
   
2. the document shows threats to take the matter to the police and that he would be "in big trouble" were made to the first defendant by the investigating bank officers. It also appears the interview at least on 28 January 2009 lasted for most of the day because it notes that "at the end of the day Michael again confessed."
   

This is despite repeated assertions in other parts of the document by Michael that he did not steal the $29,000 and that the money may have been misplaced or stolen at the Faleolo Agency.

Incriminating admissions or confessions made to investigating employers by suspected employees are subject to the same rules of admissibility as admissions or confessions made to the police. A servant of the investigating employer is in my respectful view a person in authority in accordance with established traditional common law rules and tests. The requirements were relevantly summarized in the leading judgment of Lord Summer in the Privy Council in Ibrahim v R [1914] AC 599:

"It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecutor to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority."

And by Cave J. in R v Thompson [1893] UKLawRpKQB 74; [1893] 2 QB 12:

"If it" (the confession) proceeds from remorse and a desire to make reparation for the crime, it is admissible. If it flows from hope or fear, excited by a person in authority, it is inadmissible."

And by the Privy Council in Deokinanan v R [1968] 1 AC 20, 33:

"A person in authority means, generally speaking, anyone who has authority or control over the accused or over the proceedings or the prosecution against him. And the reason that it is a rule of law that confessions made as the result of inducements held out by persons in authority are inadmissible is clearly this, that the authority that the accused knows such persons to possess may well be supposed in the majority of instances both to animate his hopes of favour on the one hand and on the other to inspire him with awe..."

As to who constitutes a "person in authority" see the Court of Criminal Appeal in R v Dixon (1992) 28 NSWLR 215 where the court held that at common law:

" A person in authority includes any person concerned in the arrest detention or examination of the accused, or who has an interest in respect of the offence or who otherwise is seen by the accused by virtue of his position as capable of influencing the course of the prosecution or the manner in which he is treated in respect of it."

These rules require that statements obtained in breach of common law requirements or that was not given voluntarily or statements that were given in breach of an accuseds constitutional rights can and should be excluded unless saved by some statutory provision such as section 18 of the Evidence Ordinance 1961. So also should statements obtained oppressively or unfairly be rejected in the exercise of the courts residual discretion: see Police v Vailopa [2009] WSSC 69 supra.

I am not satisfied to the required standard "P-10" satisfies these tests notwithstanding the fact that it was not challenged by counsel for the defendant. In reaching that decision I bear in mind the first defendants age and the circumstances of the said interviews and obtaining of "P-10". I have no such difficulty in regard however to "P-7" which in any event counsel did not challenge either.

As for the second defendant Silipi she too was interviewed by Aiono on 27 and 28 January 2009 and on the 29 January by the same Manager who interviewed the first defendant. As a result a statement dated 27 January produced as Exhibit "P-9" for the prosecution was obtained by the Bank. This one is signed by Silipi, however I have the same reservations regarding this statement and whether it complies with the rules as to voluntariness, oppression and unfairness as well the applicable statutory and constitutional requirements. It would in my view be dangerous to rely on it and notwithstanding that counsel for this defendant also did not challenge on any of these grounds, I find "P-9" to be inadmissible.

In any event, in relation to both "P-9" and "P-10" I note there may also be an infringement of the rule against one co-defendant implicating another in their statements, not that that was made an issue of either.

"It is a fundamental rule of evidence that statements made by one defendant either to the police or others (other than statements whether in the presence or absence of a co-defendant made in the course and pursuance of a joint criminal enterprise to which the de-defendant was a party) are not evidence against a co-defendant unless the co-defendant either expressly or by implication adopts the statements and thereby makes them his own". see Archibold 'Criminal Pleading Evidence and Practice' 42nd edition paragraph 160 and the authorities therein.

Silipi's statement dated 28 January 2009 to Aiono produced as Exhibit "P-8" does not however suffer the same defects. I accept that was given voluntarily and I see no hint of oppressiveness or unfairness. I also note the admissibility of this statement was not challenged by counsel and accordingly it will be received into evidence but only as evidence against its maker not as evidence against Silipis co-defendant. A similar position prevails in relation to "P-7", it is only evidence against its maker. This would have been otherwise if the charge against the defendants had been one of conspiracy but the information contains no such allegation, neither was the prosecution so pursued.

What "P-7" and "P-8" show is that the defendants say "P-1" was not the original entry made by Michael. Both agree and Michaels M-36 cashbook verifies this that the original entry for 23 January 2009 was voided by Michael as a mistaken entry. Both the original and carbon duplicate of the voided entry are still in the cashbook. Then according to Michaels statement, he wrote up "P-2" which is an original. This was signed by both defendants and shows a balance on hand of $45,028.04, a total handwritten out in red pen in the left hand margin and confirmed by the second defendant. Then for reasons not completely explained by Michael in "P-7" but it seems because "P-2" did not have a carbon copy, he penned "P-1" which shows a different balance on hand namely that of $16,028.04 being what was left after making a transfer of $29,000 plus foreign exchange purchases of $1,031.02 to Silipi. This becomes the opening cash balance for the next days incoming shift and this is where the $29,000 goes "missing". Michael maintained in his statement that he however passed this money and the supporting documents to Silipi.

Silipi of course denied all this to Ms Aiono and in her statement she acknowledged receiving the foreign exchange payment of $1,031.02 as entered by her in her M-36 cashbook but nothing else. She said she failed to follow proper procedures and actually do a cash count even though she wrote in words and figures in the margin of "P-2" again in red pen the "P-2" total of $45,028.04 and initialed the document where appropriate. A document which shows the transfer to her of only $1,031.02 but she did notice "P-2" had no carbon so she instructed Michael to void it and re-write his work on a new sheet with a carbon. She said this he did by "P-1" which again she initialed and signed assuming it to be an accurate reproduction of the "P-2" document that was produced to her earlier by Michael. Again "P-1" shows her writing out in words and figures the revised total and initialing a transfer which she maintains did not occur and all this despite the fact that she noticed Michael was drunk and did not check his work.

The incoming shift of 24 January 2009 comprised the other two civilian witnesses called by the prosecution in this matter, Iupeli Siliva and Sakaria Fereti. Senior teller Iupeli Siliva testified that they commenced their shift at 9pm on 24 January 2009 and while the standard procedure was for the previous shift to be present while the incoming shift counts the monies the defendants were absent having knocked off work a few hours earlier and when the bank office rang the defendants phone it was switched off. They therefore entered the locked agency premises at Faleolo and counted the money in Michaels cash tin. Present at this count were his co-teller Sakaria and one other teller James Tavana who came in to witness the count at their request.

Iupelis evidence was that he took over Michaels tin and Sakaria took over Silipis tin and that Tavana was present to verify the counts in the absence of Michael and Silipi. The money from Michaels tin was counted but at the initial hearing this witness was unclear as to the exact amount of cash in the tin. At various times he referred to it as $16,028.04 as per "P-1" but then appeared to say there was a further $10,148.09 in cash less $277 placed in the terminal making a total of $25,899.13 which was the total money transferred to them. This seems borne out by the document immediately following "P-1" in Michaels M-36 cashbook dated 24 January which in the absence of a transcript I have marked Exhibit "P-13"for the prosecution for ease of identification. That appears to be an M-36 original prepared by him but signed off by Tavana who also wrote the total of $25,899.13 in the margin in red pen.

This evidence puzzled me as it was in direct conflict with the prosecution allegation that only $16,028.04 had been transferred to the incoming shift and that $29,000 had gone missing from the defendants shift. As the issue was important I therefore directed at the close of all the evidence that this witness be recalled and that James Tavana who was independent of the two shift officers and who had signed off on the amount transferred from one shift to another also be called. At the recall Iupeli's previous testimony was read out to him by the deputy registrar to refresh his memory. He confirmed Tavana had been present and confirmed the amount transferred was in fact $25,899.13 as recorded in "P-13". This amount was made up of the cash of $16,028.04 and a sum of $10,148.09. They were in separate bundles but the total monies were kept together and the total sum of $25,899.13 was what Tavana verified and it represented the cash handed over to their shift. He was however unable to explain why the carbon entry at the end of their 24 January 2009 shift which I have again for ease of identification marked Exhibit "P-14" for the prosecution, shows the transferred balance to be $16,028.04 and not $25,899.13. Even though he admits it was he who filled in that sheet at the end of their 24 January 2009 shift. He also cannot recall why the total was not written out as is normal in the margin on the left hand side of "P-14". "P-14" is signed by him and no other person: see the bottom of the document.

The evidence of James Tavana confirmed that he was asked to be present to verify the cash between the two shifts and that he wrote in the transferred balance in red pen in the left hand margin of "P-13". After examining the M-36 entries he agreed the balance counted and handed over to Iupeli and Sakaria was $25,899.13. He denied that anyone removed any money and said that he was only present by accident having gone with the driver of the pick up vehicle for a ride to deliver Iupeli and Sakarias shift to the airport agency.

Sakarias evidence was more straight forward. He took over Silipis tin and his count confirmed the monies in her tin tallied with her M-36 cashbook record for 23 January 2009 - see the relevant entry in Exh. "P-6" for the prosecution.

The cautioned statements:

Finally the prosecution called the investigating officer Sergeant Malama Fauoo to introduce into evidence cautioned statements taken from the defendants, "P-11" for Michael and "P-12" for Silipi. The cautioned statements themselves contain no incriminating admissions but both referred to earlier statements taken by the sergeant on 29 January 2009 when he first interviewed the defendants at the police station. The prosecution also sought to introduce these statements into evidence but this was objected to by defence counsel and accordingly a voir dire was held to determine their admissibility. At the end of the voir dire I indicated the documents would be ruled inadmissible for reasons to be given as part of the final judgment.

The prosecution submission was that the earlier statements should be admitted because they were referred to in the subsequent cautioned statements made after the defendants were properly advised as to their constitutional and other rights. The reference in the subsequent statements to the earlier statements was the defendants saying "I have nothing to say, what I said before is sufficient". The prosecution argument was that this somehow incorporates by reference the earlier witness statements into the defendants later cautioned statements. I have severe problems with this argument.

Firstly, "P-11" and "P-12" does not specifically incorporate the earlier statements by saying e.g. I have nothing to add to my earlier statement which relates such and such and such and such. They only refer to the making of an earlier statement and are merely a statement by the defendants that they have nothing more to say to the Police. Mere reference to an earlier statement should not make the earlier statement admissible in totem as part of a later statement.

Secondly the earlier statements were taken when the matter was referred by the Bank to the Police. The Bank had already carried out its own investigations and determined the defendants to be the primary suspects. Notwithstanding the sergeants evidence that he had not decided to charge at that stage the defendants should have been advised as to their rights prior to interview as they were brought in and interviewed as primary suspects. The sergeant admitted as much in his evidence at page 2 where he said "o le mataupu na avatu e toalua tagata sa masalomia". If not advised as to their rights as to a matter of law then certainly they should have been advised as to their rights as a matter of fairness. See Police v Vailopa [2009] WSSC 69 where it was stated:

"At common law a voluntary statement could nevertheless be excluded in the courts discretion if it was unfairly obtained or "obtained by improper or unfair methods": R v Ali [1999] NZCA 292. The principles and exercise of this discretion were recently reviewed by this court in Police v Masame [2007] WSSC 66 and have been applied in many cases, e.g. Police v Taito (unreported) 15 December 2008. The relevant issue is as was stated by the New Zealand Court of Appeal in R v Convery [1967] NZCA 37; [1968] NZLR 426, 438:

'Whether the course of the inquiry, as proved in evidence, makes it unjust that the statement should be received. In answering this inquiry the court may consider not only the case immediately before it, but also the necessity of maintaining effective control over police procedure and the generality of cases.'

The court in Ali cited this passage and then concluded at paragraph 51: It is then a matter of looking at the totality of the police conduct. What is important is the overall question of the fairness of the police methods and the issue of fairness is determined by the judge as a matter of judgment rather than by reference to the onus of proof."

Thirdly, I note no authority was cited by counsel for the prosecution as to the admissibility of the earlier statements in such circumstances and I know of no case where the court has sanctioned such a novel proposition. Counsel mentioned the old authority of Slatterie v Pooley [1840] EngR 227; (1840) 6 M & W 664 but that was a quite different set of circumstances and that case concerned the admissibility of an oral admission of a debt referred to in a subsequent written document. That particular decision has also been criticized by numerous commentators since then, see Taylors Law of Evidence 12th ed. Vol 1 page 286.

Counsel further referred in his submissions to the earlier statements being admissible as statements against interest citing Cross 7th NZ ed. paragraph 18.4. But the common law rules making such statements admissible evolved out of and are directed towards statements which are against a persons proprietory or pecuniary interest, not in respect of criminal liability and those rules relate to statements made by deceased persons not live ones: see Stephen v Gwenap (1831) 1 Mood and R 120. In New Zealand the common law has been modified by statute (s.9 of the Evidence Amendment Act 1980) to extend the admissibility to criminal cases and statements by living persons but this is Samoa not New Zealand. We have no such legislative provision as part of our law.

I therefore concluded there is no basis for the prosecution argument, it fails and the earlier statements made by the defendants in their capacity as witnesses must be excluded from consideration. "P-11" and "P-12" accordingly are reduced to something of little evidentiary value.

Decision:

The prosecution case raises more questions than answers. Firstly it rests on the allegation that the pre-theft balance was $45,028.04 as shown by "P-2", "P-2" being a document prepared by the first defendant and verified by the second defendant in red pen. But the actual money transferred to the incoming shift was $29,000 less namely $16,028.04 as shown by "P-1". "P-1" was a document also prepared by the first defendant and verified by the second defendant and this was the cash transferred to the incoming shift of Messrs Iupeli and Sakaria on 24 January 2009. The problem with that is the evidence of both Iupeli and the independent Tavana who witnessed the cash count by the incoming shift was that the actual cash balance transferred was $25,899.13 as shown by "P-13", "P-13" being a document prepared by Iupeli and verified by Tavana in red pen. According to these witnesses in terms of the actual cash transferred from one shift to the other the amount was $25,899.13 and not $16,028.04 as alleged by the prosecution. Why this amount changed by shifts end to $16,028.04 (see "P-14") is a mystery and is not explained by the prosecution evidence and could not be explained by the witness Iupeli. But "P-13" and the testimony of both Iupeli and Tavana whose evidence I have no reason to doubt as they are both independent of this matter was that the balance transferred to the new shift was not $16,028 but $25,899.13. On these figures there is no missing $29,000.

It is equally a mystery why the second defendant who is an experienced teller would verify in her own handwriting if she was going to commit a theft, in "P-1" and "P-2" two significantly different amounts. If she was indeed intending to steal this amount why would she leave so obvious a documentary discrepancy? If it was designed to sow confusion on the part of any investigator, it has certainly succeeded. Equally mysterious is the whereabouts of the original of "P-1". "P-2" is obviously an original, witness the writing in red pen, but "P-1" appears to be a carbon copy only and a close examination of the binding in the relevant area of the M-36 cashbook for that entry reveals there was an original but it was torn out of the book. That original would have a tell-tale tear on the bottom left hand corner thereof which does not match up with "P-2". These lend some credence to the defendants assertions that "P-2" was supposed to be voided and "P-1" was the replacement entry. But if that is so, why does "P-1" showing the $29,000 transfer not match up with the second defendants record of "P-6" which shows only $1,031.02 was transferred by the first defendant to the second defendant?

The defendants are charged with jointly stealing $29,000. The evidence in particular that of the incoming shift shows $29,000 was not missing from the previous shift. An amount of some 19 - odd thousand tala may have been unaccounted for but the evidence does not substantiate the charge that has been laid. There is the added complication that the evidence of the Bank representative was that there was no report of any missing money from the agency. One would expect that a shortage of $29,000 would become readily apparent given that it was a small agency. A loss of $29,000 from someones account or someones banking one would expect to be the subject of boisterous and immediate complaint. However I do accept that absent a full and comprehensive audit such matters are difficult to detect or pinpoint in an organization such as a bank which regularly processes and handles numerous large cash transactions.

Michael and Silipi I have my suspicions as to what may or may not have happened and that the two of you may have done something dishonest either separately whereby you both stole money or one of you stole some money and is trying to implicate the other in that theft. But I am not sure which is the case and I am equally not sure there was a theft provable by the evidence in the first place. The burden of proof requires that I must be sure that I must be satisfied beyond reasonable doubt about your guilt before I can convict you. If I am not sure then I have a reasonable doubt and the law says you are to be given the benefit of that doubt. I find from this evidence that a reasonable doubt does exist, I am left in that position, the charge against you is therefore dismissed.

JUSTICE NELSON